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FIFTH SECTION CASE M. K. v. FRANCE (Application No. 19522/09)

OFF STRASBOURG April 18, 2013

This judgment will become final in the circumstances set out in Article 44 2 of the Convention. It may be subject to editorial revision. In the case of M. K. v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nuberger, Ann Power-Forde, Andr Potocki, Paul Lemmens, Helena Jderblom, Ale Pejchal, Judges, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 26 March 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. At the root of the matter in an application (no. 19522/09) against the French Republic by a national of that State, MMK ("The applicant"), petitioned the Court on 28 February 2009 pursuant to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). 2. The applicant, who had been granted legal aid, was represented by C. Meyer, a lawyer in Strasbourg. The French Government ("the Government") were represented by their Agent, Ms E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs. 3. The applicant alleged, in particular a violation of Article 8 of the Convention, due to the retention of data concerning the automated fingerprint file. 4. On 8 March 2011, the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1972 and lives in Paris. 6. On 10 February 2004, an investigation was opened against the applicant for stealing books. Investigative services prlevrent fingerprints. 7. In a judgment of 15 February 2005, on appeal from a judgment delivered on 28 April 2004 by the Paris Criminal Court, the Court of Appeal of Paris acquitted the applicant. 8. On 28 September 2005 the applicant was placed in custody under a spot investigation, also for stealing books. He again subject to fingerprinting. 9. February 2, 2006, this procedure was closed without further action by the prosecutor of Paris. 10. The fingerprints taken when these procedures were recorded in automated fingerprint file ("AFIS"). 11. By letter dated 21 April 2006, the applicant requested the prosecutor of Paris that his fingerprints are deleted from AFIS. 12. May 31, 2006, the prosecutor did make only erasure of samples taken during the first procedure. He argued that keeping a copy of the fingerprints of the applicant was justified in the interest of the latter, to exclude his participation in the case of acts committed by third usurping their identity. 13. On 26 June 2006, the applicant appealed to the judge of freedoms and detention of the Tribunal de Grande Instance of Paris. 14. By an Order of 25 August 2006, the judge of freedoms and detention rejected his request. It held that the maintenance of fingerprints was in the interest of investigative services, allowing them to have a file with the highest possible references. The judge added that this did not cause any grievance to the applicant, taking into account the privacy of the file, which excluded any effect on social or personal life of the individual. 15. On 21 December 2006, the president of the investigating chamber of the Court of Appeal of Paris upheld the order. 16. In a judgment of 1 October 2008, the Court of Cassation dismissed the applicant's appeal considering the procedure is written, that he had been able to make their arguments and take notice of opposition motivated Crown . She added that the parts of the procedure allowed him to ensure that the application had been handled in accordance with legal and contractual texts cited by the applicant, which included Article 8 of the Convention. II. THE DOMESTIC AND INTERNATIONAL LAW RELEVANT A. The relevant domestic law 17. The relevant provisions of Decree No. 87-249 of 8 April 1987 on the automated fingerprint file managed by the Ministry of the Interior, in their relevant version at the material time, read as follows: Article 1 "Is authorized in accordance with this decree, the automated processing of traces and fingerprints and palm prints to facilitate the search and identification by the services of the national police and gendarmerie, perpetrators and crime and facilitate the prosecution, investigation and trial of cases before the judicial authority is entered. " Article 2 "This treatment is implemented by the Central Directorate of the Judicial Police in the Interior Ministry. It bears the name of automated fingerprint file. " Article 3 "Can be recorded:

1o The marks obtained in the course of an investigation for a crime or flagrante delicto, a preliminary investigation, a commission, an inquiry or investigation for research into the causes of an alarming or suspicious disappearance scheduled by Articles 74-1 and 80-4 of the Code of Criminal Procedure or the execution of a search order issued by a judicial authority; 2o fingerprint and palmprint identified in the course of an investigation for a crime or flagrante delicto, a preliminary investigation, a commission or execution of a search order issued by a judicial authority, when they relate to persons against whom there are serious and concordant evidence making it likely that they could participate as author or accomplice, in the commission of a crime or offense or persons implicated in criminal proceedings, including positive identification is necessary; 3o The finger and palm prints found in prisons, under the Code of Criminal Procedure, in order to ensure certainty the identity of the prisoners who are the subject of proceedings for a criminal offense and establishing recidivism; 4o traces and fingerprints, palm prints sent by international cooperation agencies for police or foreign police in implementing international commitments. " Article 4 "The fingerprint and palmprint are registered with the following information: 1o The full name, date and place of birth, parentage and sex; 2o The department which signaling; 3o The date and place of establishment of the MSDS; 4o The nature of the case and the procedure reference. 5o The mug shots; 6o For fingerprints transmitted as provided in 4 of section 3, the origin of the information and the date of registration in the treatment. The fingerprints are stored shall include the following information: 1o The place where they were found, and the date of the statement; 2o The service which conducted the survey of traces; 3o The date and place of business of the record supporting reproductive traces papillary; 4o The nature of the case and the reference procedure; 5o The origin of the information and the date of its registration in the treatment. " Article 5 "The recorded information is stored for a maximum of twenty-five years after the establishment of the MSDS, if it has not been previously conducted their deletion in accordance with Articles 7 and

7-1 or because of what the treatment management department was informed of the death of the person concerned or his discovery in the case of a missing person. (...) " Article 7 "This treatment is under the control of the Attorney General at the Court of Appeal in the spring which is located Manager service. It can automatically and without prejudice to the checks carried out by the National Commission on Informatics and Liberties under the Law of 6 January 1978 referred to above, order the deletion of information whose retention would seem clearly more useful given the purpose of processing. The File Manager authority to address the judge as well as the National Commission on Informatics and Liberties an annual operations stating in particular the results of operations for updating and clearing File report. " Article 7-1 "The fingerprints taken under the conditions mentioned in 2 of Article 3 may be deleted at the request of the person concerned, their preservation no longer appears necessary given the purpose of the file. The prosecutor competent to order the deletion is that of the court in whose jurisdiction the procedure was conducted which resulted in the recording. The deletion request must, under penalty of inadmissibility, be sent by registered letter with acknowledgment of receipt or declaration to the court letter. This request is sent directly to the prosecutor of the competent State under the provisions of the preceding paragraph. It may also be addressed to the prosecutor of the home of the person, which transmits it to the competent State Attorney. A competent court announced its decision to the applicant by registered letter within three months of receipt of the request either by himself or by the prosecutor of the home of the person concerned. Failure to respond within that period, or if the judge does not order the cancellation, the applicant may refer to the same purpose the judge of freedoms and detention within ten days by registered letter with advice of receipt or declaration to the court. After asking for written public prosecutor, the judge of freedoms and detention statue by reasoned order within two months requisitions. Notice is given to the prosecutor and, by registered letter to the applicant. Without the judge of freedoms and detention rule within two months or if order denying the cancellation, the applicant may, within ten days, notify the Chairman of the Chamber of instruction, by registered letter with acknowledgment of receipt or declaration to the court letter. To be accepted, the claim must be substantiated. Where an order requiring the erasure, the prosecutor may, within ten days, appeal the decision to the president of the investigating chamber. This suspends the execution of the contested decision. The president of the investigating chamber statue, after seeking written the Attorney General, by reasoned decision within three months order requisitions. This order shall be notified to the public

prosecutor and by registered letter to the applicant. It can not be an appeal if it does not comply, in form, the essential conditions of its legal existence. " Article 8 "Duly authorized services Forensic Identification Department of the Interior and research units of the gendarmerie will only have access to recorded information and make the identification process at the request of the judicial authority or police officers of the national police or gendarmerie. " 18. Article 55-1 of the Code of Criminal Procedure provides that: Article 55-1 "The police officer may, or cause under his control, to anyone who can provide information on the facts of the case or any person against whom there are one or more plausible reasons to suspect that it has committed or attempted to commit the offense, the operations of external samples needed for the production of technical and scientific comparison and reviews with traces collected for the needs of the survey evidence. He shall, or shall cause under its control, operations and statements identifying particular taking fingerprints, palm prints or photographs necessary for the supply and consultation font files according to the rules in each of these files . The refusal by a person against whom there are one or more plausible reasons to suspect has committed or attempted to commit an offense, to submit to harvesting operations, referred to in the first and second paragraphs ordered by 'police officer is punishable by one year in prison and 15,000 euros fine. " B. Relevant international law 19. Relevant international elements are exposed in S. and Marper c. United Kingdom [GC] (Nos. 30562/04 and 30566/04, 41-42 and 50-53, ECHR 2008 - ...). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 20. The applicant alleged a violation of his right to respect for his private life, due to the retention of data concerning the automated fingerprint file. He relied on Article 8 of the Convention, which provides: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There can be no interference by a public authority with the exercise of this right except such as is in accordance with the law and constitutes a measure which, in a democratic society in the interests of national security, public safety or the economic well-being of the country, the defense of order and prevention of crime, protection of health or morals, or the protection of rights and freedoms of others . " 21. The Government contested that argument. A. Admissibility 22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other

grounds. It must therefore be declared admissible. B. On the bottom 1. Arguments of the parties 23. The applicant does not dispute the legality of the interference with his right to respect for his private life, but he feels justified. He first denounces any lack of proportionality of means to achieve his goal. He believes that the provisions of Article 1 of the Decree of 1987, relating to the purpose of the measure is too broad and vague in their subject in their definition. Accordingly, the authorities have excessive latitude with a blanket and indiscriminate power conservation. He denounced a real risk of abuse in terms of deviance affecting other files. 24. In addition, the applicant submits that the shelf life was arbitrarily set and it amounts to no time limitation. In his view, the period of twenty-five years is actually not a maximum, but a standard, which certifies the pithy rejection of his application before the domestic courts. As for motivation erase refusal, it is not regulated and may reflect a bias against the plaintiff, as in this case. 25. The applicant criticizes also a lack of effective procedural safeguards, arguing that judges may not only undermine the authority of res judicata to deny criminal erasure, as was the case for him, but that Moreover the existence of data in the file results in itself discounts because of the presumption of innocence. 26. The Government does not dispute that the retention of data relating to the applicant automated fingerprint file ("AFIS") constitutes an interference with his right to respect for his private life. 27. It considers, however, on the one hand, it was prescribed by law, namely under Article 55-1 of the Criminal Procedure Code and Decree No. 87-249 of 8 April 1987 amended, and the other hand, pursued a legitimate aim of protection of public order, since it aims to identify the perpetrators of criminal offenses and prosecute for. 28. The Government also considers that the interference was necessary in a democratic society. While recalling the jurisprudence of the Court does not prohibit states to collect and store personal data, when there is adequate and effective guarantees, he emphasized three points: States enjoy a certain margin of appreciation in this area and it should be larger in the case of simple fingerprint, AFIS contributes greatly to the success of the investigation and detection of identity theft, many safeguards surrounding the management of AFIS. On these guarantees, the Government states that the data entered are exhaustively listed and the file can be accessed only from the comparison of fingerprints (and not from a name or address). In addition, only police officers and police skills can view. The data processing is under the control of both the Attorney General at the Court of Appeal and the National Commission on Informatics and Liberties ("CNIL"), which is an independent administrative authority. While limiting the duration of data retention to twenty-five years, the decree provides that the applicant may request the cancellation, legal action is available if refusal by the prosecutor. In this case, the Government noted that the applicant has made use of this remedy, grabbing the judge of freedoms and detention, and the first president of the Court of Appeal. It also argues that the Court of Cassation considered the applicant's appeal to the rights of the defense, although she declared inadmissible. 2. Findings of the Court a) The existence of an interference 29. The Court recalls that the storage in a file of the national authorities, the fingerprints of an identified or identifiable individual constitutes an interference with the right to respect for private life (S. and Marper, 86). b) Justification for the interference i. Legal basis

30. Such interference must be prescribed by law, which implies the existence of a basis in domestic law, consistent with the rule of law. The law must therefore be sufficiently accessible and foreseeable, it is formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct. So that we can assess compliance with these requirements, it must provide adequate protection against arbitrary and, therefore, define with sufficient clarity the scope and manner of exercise of the power conferred on the competent authorities (see Among other things, Malone c. UK, 2 August 1984, 66-68, Series A No. 82, Rotaru v.. Romania [GC], no 28341/95, 55, ECHR 2000-V, and S. and Marper, 95). The level of precision required of domestic legislation - which the rest can deal with any eventuality - depends to a large extent on the content of the text in question, the field it is designed to cover and the number and quality of its recipients ( see, among others, Hassan and Chaush c. Bulgaria [GC], no 30985/96, 84, ECHR 2000-XI, and S. and Marper, 96). 31. In this case, the Court finds that the interference was prescribed by law, namely Article 55-1 of the Criminal Procedure Code and Decree No. 87-249 of 8 April 1987 changed. As to the question whether the legislation in question is sufficiently clear and precise as regards the conditions of storage, use and deletion of personal data, the Court notes that the applicant mentions these problems within the framework of its development the proportionality of the interference. In any case, it considers that these aspects are closely linked in this case to the broader question of the necessity of the interference in a democratic society and that such control of the "quality" of the law in This case refers to the following analysis of the proportionality of the interference (S. and Marper, 99). ii. Legitimate aim 32. The Court further notes that the interference pursued a legitimate aim: the detection and, consequently, the prevention of crime (S. and Marper, 100). iii. Necessity of the interference ) The general principles 33. It remains to determine whether the interference can be regarded as "necessary in a democratic society", which control replying to a "pressing social need" and, in particular, that it is proportionate to the legitimate aim and that the reasons adduced by the national authorities to justify it are "relevant and sufficient" (S. and Marper, 101). 34. While it is first of all the national authorities to assess whether these conditions are fulfilled, it is the Court's responsibility to decide the ultimate question of the necessity of the interference to the requirements of the Convention (Coster c. United Kingdom [GC], no 24876/94, 104, 18 January 2001, and S. and Marper, supra). A certain margin of appreciation, the magnitude varies and depends on a number of factors, including the nature of the activities involved and the purposes of the restrictions (see, Smith and Grady v.. UK our 33985/96 and 33986/96, 88, ECHR 1999-VI... Gardel v. France, No. 16428/05, Bouchacourt v. France, No. 5335/06, and MB v. France, No. 22115/06, Dec. 17 2009, respectively, 60, 59 and 51), is in principle left to the states in this context (see, among many others, Klass et al. Germany, 6 September 1978, 49, Series A No. 28) . This margin is much smaller than the right in question is important to ensure the individual's effective enjoyment of human rights or order "intimate" as recognized (c Connors. UK, No. 66746/01 , 82, 27 May 2004, S. and Marper, 102). Where a particularly important aspect of the existence or identity of an individual is at stake, the margin allowed to the State is limited (Evans c. United Kingdom [GC], no 6339/05, 77, ECHR 2007-I, S. and Marper, supra, Gardel, and Bouchacourt MB, cited above, 61, 60 and 52). However, when there is no consensus among the member states of the Council of Europe, whether the relative importance of the interest at stake or how best to protect the margin of appreciation is wider (c Dickson. United Kingdom [GC], no 44362/04, 78, ECHR 2007-XIII). 35. The protection of personal data is fundamental to the exercise of the right to respect for private

and family life under Article 8 of the Convention. Domestic law must therefore afford appropriate safeguards to prevent any use of personal data that does not conform to safeguards under this article (S. and Marper, 103, and Gardel, and Bouchacourt MB, supra, 62, 61 and 53 respectively). Like what she said in S. and Marper (supra), the Court is of the opinion that the need for such safeguards is all the greater when it comes to protecting the personal data undergoing automatic processing, particularly when these data are used for police purposes. The law must ensure that such data are relevant and not excessive in relation to the purposes for which they are registered, and they are kept in a form which permits identification of data subjects for no longer than is required for the purposes for which they are registered. It should also contain guarantees to effectively protect personal data stored against the improper and abusive use (ibid.). 36. Finally, it is for the Court to be particularly attentive to the risk of stigmatization of people who, like the applicant, have been convicted of any offense and are entitled to the presumption of innocence, while their treatment is the same as convicted persons. If, from this point of view, the preservation of private data is not equivalent to the expression of suspicion, it is still necessary that the conditions of this conservation does not give the impression of not being considered innocent (S . and Marper, 122). ) The application of these principles to the present case 37. In this case, the contested measure, which does not in itself any obligation on the applicant follows the terms of reference sufficiently regulated, whether the persons authorized to consult the file or system authorization which are subject identification operations that correspond to the purpose of the file (see, a contrario, Khelili c. Switzerland, No. 16188/07, 64, 18 October 2011). 38. The Court observes that it is a different plan for the collection and storage of data. 39. Indeed, the Court notes at the outset that the purpose of the file, notwithstanding the legitimate aim pursued, necessarily resulted in the addition and conservation of many possible names, which confirms the reasoning of the judge of freedoms and holding in its order of 25 August 2006 (see paragraph 14 above). 40. It also notes that the refusal of the prosecutor to erasing the samples taken during the second procedure was motivated by the need to safeguard the interests of the applicant, to exclude its participation in the event of theft of identity by a third party (see paragraph 12 above). However, besides the fact that such a ground is not expressly to the provisions of Article 1 of the contested decree, except to make it a particularly broad interpretation, the Court considers that accept the argument alleging warranty protection against the actions of third parties who may steal identity would, in practice, to justify the filing away of the entire population present on French soil, which would certainly be excessive and irrelevant. 41. In addition, the first function of the file that is to facilitate the search and identification of crimes and misdemeanors, the text added a second, "to facilitate the prosecution, investigation and trial of cases before judicial authority has "that it is not clear that it applies only to crimes. Also to "persons, defendants in criminal proceedings, including the identification is necessary" (Article 3, 2 of the Decree), it is likely to include de facto all offenses, including simple fines in the event that it will help identify the perpetrators of crimes and offenses according to the purpose of Article 1 of the decree (see paragraph 17 above). In any event, the circumstances of the case, on the facts of flight filed without books, testify that the law applies to minor offenses. This case is thus clearly distinguishable from those specifically involved as serious as organized crime offenses (S. and Marper, supra) or sexual assault (Gardel and Bouchacourt MB, supra). 42. In addition, the Court notes that the decree makes no distinction based on whether or not a conviction by a court, or even prosecuted by the prosecution. However, in its judgment S. and Marper, the Court emphasized the risk of stigmatization, stemming from the fact that people who had respectively been acquitted and a decision not to prosecute - and were therefore entitled to the presumption of innocence - were treated in the same way as convicted persons ( 22). The situation in this case is similar in this regard, the applicant received an acquittal in a first procedure, before seeing the allegations subsequently closed due.

43. In the eyes of the Court, the provisions of the relevant decree on how to store data does not provide a more sufficient protection for. 44. Regarding first the possibility of erasing the data, it considers that the right to submit at any time a request to that effect to the judge is likely to face, in the words of the order of 25 August 2006, the interest of investigative services that must have a file with the most possible references (see paragraph 14 above). Accordingly, the interests in being - if only partially - contradictory, erasure, which is, moreover, not a right, is a "theoretical and illusory" coverage and not "practical and effective". 45. The Court noted that if the storage of information included in the file is limited in time, the storage period is twenty-five years. Given its previous finding that the chances of success of deletion requests are at least hypothetical, such a term is in practice equivalent to a permanent preservation or at least, as the applicant submits a standard rather than at a maximum. 46. In conclusion, the Court considers that the respondent State has overstepped its discretion in the matter, the conservation system in the litigation file fingerprints of persons suspected of having committed offenses but not convicted, as was applied to the applicant in this case, not reflecting a balance between the competing public and private interests at stake therefore the disputed conservation amounted to a disproportionate interference with the applicant's right to respect for his private life and can not be regarded as necessary in a democratic society. 47. Accordingly, there has been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 48. The applicant also complained of the unfairness of the proceedings deletion request. He relied on Article 6 1 of the Convention, the relevant provisions in this case read as follows: "Everyone has the right to have his case heard fairly (...) by a court (...), who decides (...) the determination of his rights and obligations in a suit (...)" 49. Besides the fact that this complaint partly overlaps with that under Article 8 of the Convention, taking into account all information in its possession, and to the extent that it had jurisdiction to hear the allegations, the Court found no apparent violation of the rights and freedoms guaranteed by the Convention or its Protocols. 50. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 3 (a) and 4 of the Convention. III. ON THE APPLICATION OF ARTICLE 41 OF THE CONVENTION 51. Under Article 41 of the Convention, "If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation of the consequences of this violation, the Court grants the injured party , if necessary, afford just satisfaction. " 52. The applicant, who had been granted legal aid in the proceedings before the Court has not made any claim for just satisfaction. Accordingly, the Court considers that there is no reason to grant him money for this purpose. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible as regards the complaint under Article 8 and inadmissible; 2. Said there had been a violation of Article 8 of the Convention. Done in French, and notified in writing by April 18, 2013, pursuant to Rule 77 2 and 3 of the

Regulation. Stephen Phillips Registrar Mark Villiger President