EHRM, 04-12-2008, nr. 30562/04, nr. 30566/04

In Van der Velden, the Court considered that, given the use to which cellular material in particular could conceivably be put in the future, the systematic retention of that material was sufficiently intrusive to disclose interference with the right to respect for private life (see Van der Velden cited above). The Government criticised that conclusion on the ground that it speculated on the theoretical future use of samples and that there was no such interference at present.

The Court maintains its view that an individual's concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference. Indeed, bearing in mind the rapid pace of developments in the field of genetics and information technology, the Court cannot discount the possibility that in the future the private-life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today. Accordingly, the Court does not find any sufficient reason to depart from its finding in the Van der Velden case.

Legitimate concerns about the conceivable use of cellular material in the future are not, however, the only element to be taken into account in the determination of the present issue. In addition to the highly personal nature of cellular samples, the Court notes that they contain much sensitive information about an individual, including information about his or her health. Moreover, samples contain a unique genetic code of great relevance to both the individual and his relatives. In this respect the Court concurs with the opinion expressed by Baroness Hale in the House of Lords (see paragraph 25 above).

Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of this information is actually extracted or used by the authorities through DNA profiling and that no immediate detriment is caused in a particular case does not change this conclusion (see Amann cited above, § 69).

As regards DNA profiles themselves, the Court notes that they contain a more limited amount of personal information extracted from cellular samples in a coded form. The Government submitted that a DNA profile is nothing more than a sequence of numbers or a bar-code containing information of a purely objective and irrefutable character and that the identification of a subject only occurs in case of a match with another profile in the database. They also submitted that, being in coded form, computer technology is required to render the information intelligible and that only a limited number of persons would be able to interpret the data in question.

The Court observes, nonetheless, that the profiles contain substantial amounts of unique personal data. While the information contained in the profiles may be considered objective and irrefutable in the sense submitted by the Government, their processing through automated means allows the authorities to go well beyond neutral identification. The Court notes in this regard that the Government accepted that DNA profiles could be, and indeed had in some cases been, used for familial searching with a view to identifying a possible genetic relationship between individuals. They also accepted the highly sensitive nature of such searching and the need for very strict controls in this respect. In the Court's view, the DNA profiles' capacity to provide a means of identifying genetic relationships between individuals (see paragraph 39 above) is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned. The frequency of familial searches, the safeguards attached thereto and the likelihood of detriment in a particular case are immaterial in this respect (see Amann cited above, § 69). This conclusion is similarly not affected by the fact that, since the information is in coded form, it is intelligible only with the use of computer technology and capable of being interpreted only by a limited number of persons.

The Court further notes that it is not disputed by the Government that the processing of DNA profiles allows the authorities to assess the likely ethnic origin of the donor and that such techniques are in fact used in police investigations (see paragraph 40 above). The possibility the DNA profiles create for inferences to be drawn as to ethnic origin makes their retention all the more sensitive and susceptible of affecting the right to private life. This conclusion is consistent with the principle laid down in the Data Protection Convention and reflected in the Data Protection Act that both list personal data revealing ethnic origin among the special categories of sensitive data attracting a heightened level of protection (see paragraphs 30–31 and 41 above).

In view of the foregoing, the Court concludes that the retention of both cellular samples and DNA profiles discloses an interference with the applicants' right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention.

It is common ground that fingerprints do not contain as much information as either cellular samples or DNA profiles. The issue of alleged interference with the right to respect for private life caused by their retention by the authorities has already been considered by the Convention organs.

In McVeigh, the Commission first examined the issue of the taking and retention of fingerprints as part of a series of investigative measures. It accepted that at least some of the measures disclosed an interference with the applicants' private life, while leaving open the question of whether the retention of fingerprints alone would amount to such interference (McVeigh, O'Neill and Evans (no. 8022/77, 8025/77 and 8027/77, Report of the Commission of 18 March 1981, DR 25, p.15, § 224).

In Kinnunen, the Commission considered that fingerprints and photographs retained following the applicant's arrest did not constitute an interference with his private life as they did not contain any subjective appreciations which called for refutation. The Commission noted, however, that the data at issue had been destroyed nine years later at the applicant's request (Kinnunen v. Finland, no. 24950/94, Commission decision of 15 May 1996).

Having regard to these findings and the questions raised in the present case, the Court considers it appropriate to review this issue. It notes at the outset that the applicants' fingerprint records constitute their personal data (see paragraph 68 above) which contain certain external identification features much in the same way as, for example, personal photographs or voice samples.

In Friedl, the Commission considered that the retention of anonymous photographs that have been taken at a public demonstration did not interfere with the right to respect for private life. In so deciding, it attached special weight to the fact that the photographs concerned had not been entered in a data-processing system and that the authorities had taken no steps to identify the persons photographed by means of data processing (see Friedl cited above, §§ 49–51).

In P.G. and J.H., the Court considered that the recording of data and the systematic or permanent nature of the record could give rise to private-life considerations even though the data in question may have been available in the public domain or otherwise. The Court noted that a permanent record of a person's voice for further analysis was of direct relevance to identifying that person when considered in conjunction with other personal data. It accordingly regarded the recording of the applicants' voices for such further analysis as amounting to interference with their right to respect for their private lives (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 59–60, ECHR 2001-IX).

The Court is of the view that the general approach taken by the Convention organs in respect of photographs and voice samples should also be followed in respect of fingerprints. The Government distinguished the latter by arguing that they constituted neutral, objective and irrefutable material and, unlike photographs, were unintelligible to the untutored eye and without a comparator fingerprint. While true, this consideration cannot alter the fact that fingerprints objectively contain unique information about the individual concerned allowing his or her identification with precision in a wide range of circumstances. They are thus capable of affecting his or her private life and retention of this information without the consent of the individual concerned cannot be regarded as neutral or insignificant.

The Court accordingly considers that the retention of fingerprints on the authorities' records in connection with an identified or identifiable individual may in itself give rise, notwithstanding their objective and irrefutable character, to important private-life concerns.

In the instant case, the Court notes furthermore that the applicants' fingerprints were initially taken in criminal proceedings and subsequently recorded on a nationwide database with the aim of being permanently kept and regularly processed by automated means for criminal-identification purposes. It is accepted in this regard that, because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the Court, like Baroness Hale (see paragraph 25 above), considers that, while it may be necessary to distinguish between the taking, use and storage of fingerprints, on the one hand, and samples and profiles, on the other, in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life.

The applicants argued that the retention of fingerprints, cellular samples and DNA profiles was not justified under the second paragraph of Article 8. The Government were given a very wide remit to use samples and DNA profiles notably for ‘purposes related to the prevention or detection of crime’, ‘the investigation of an offence’ or ‘the conduct of a prosecution’. These purposes were vague and open to abuse as they might in particular lead to the collation of detailed personal information outside the immediate context of the investigation of a particular offence. The applicants further submitted that there were insufficient procedural safeguards against misuse or abuse of the information. Records on the PNC were not only accessible to the police, but also to 56 non-police bodies, including Government agencies and departments, private groups such as British Telecom and the Association of British Insurers, and even certain employers. Furthermore, the PNC was linked to the Europe-wide ‘Schengen Information System’. Consequently, their case involved a very substantial and controversial interference with the right to private life, as notably illustrated by ongoing public debate and disagreement about the subject in the United Kingdom. Contrary to the assertion of the Government, the applicants concluded that the issue of the retention of this material was of great individual concern and the State had a narrow margin of appreciation in this field.

The applicants contended that the indefinite retention of fingerprints, cellular samples and DNA profiles of unconvicted persons could not be regarded as ‘necessary in a democratic society’ for the purpose of preventing crime. In particular, there was no justification at all for the retention of cellular samples following the original generation of the DNA profile; nor had the efficacy of the profiles' retention been convincingly demonstrated since the high number of DNA matches relied upon by the Government was not shown to have led to successful prosecutions. Likewise, in most of the specific examples provided by the Government the successful prosecution had not been contingent on the retention of the records and in certain others the successful outcome could have been achieved through more limited retention in time and scope.

The applicants further submitted that the retention was disproportionate because of its blanket nature irrespective of the offences involved, the unlimited period, the failure to take account of the applicants' circumstances and the lack of an independent decision-making process or scrutiny when considering whether or not to order retention. They further considered the retention regime to be inconsistent with the Council of Europe's guidance on the subject. They emphasised, finally, that retention of the records cast suspicion on persons who had been acquitted or discharged of crimes, thus implying that they were not wholly innocent. The retention thus resulted in stigma which was particularly detrimental to children as in the case of S. and to members of certain ethnic groups over-represented on the database.

The Government submitted that any interference resulting from the retention of the applicants' fingerprints, cellular samples and DNA profiles was justified under the second paragraph of Article 8. It was in accordance with the law as expressly provided for, and governed by section 64 of the PACE, which set out detailed powers and restrictions on the taking of fingerprints and samples and clearly stated that they would be retained by the authorities regardless of the outcome of the proceedings in respect of which they were taken. The exercise of the discretion to retain fingerprints and samples was also, in any event, subject to the normal principles of law regulating discretionary power and to judicial review.

The Government further stated that the interference was necessary and proportionate for the legitimate purpose of the prevention of disorder or crime and/or the protection of the rights and freedoms of others. It was of vital importance that law enforcement agencies took full advantage of available techniques of modern technology and forensic science in the prevention, investigation and detection of crime for the interests of society generally. They submitted that the retained material was of inestimable value in the fight against crime and terrorism and the detection of the guilty and provided statistics in support of this view. They emphasised that the benefits to the criminal-justice system were enormous, not only permitting the detection of the guilty but also eliminating the innocent from inquiries and correcting and preventing miscarriages of justice.

As at 30 September 2005, the National DNA database held 181,000 profiles from individuals who would have been entitled to have those profiles destroyed before the 2001 amendments. 8,251 of those were subsequently linked with crime-scene stains which involved 13,079 offences, including 109 murders, 55 attempted murders, 116 rapes, 67 sexual offences, 105 aggravated burglaries and 126 offences of the supply of controlled drugs.

The Government also submitted specific examples of use of DNA material for successful investigation and prosecution in some eighteen specific cases. In ten of these cases the DNA profiles of suspects matched some earlier unrelated crime-scene stains retained on the database, thus allowing successful prosecution for those earlier crimes. In another case, two suspects arrested for rape were eliminated from the investigation as their DNA profiles did not match the crime-scene stain. In two other cases the retention of DNA profiles of the persons found guilty of certain minor offences (disorder and theft) led to establishing their involvement in other crimes committed later. In one case the retention of a suspect's DNA profile following an alleged immigration offence helped his extradition to the United Kingdom a year later when he was identified by one of his victims as having committed rape and murder. Finally, in four cases DNA profiles retained from four persons suspected but not convicted of certain offences (possession of offensive weapons, violent disorder and assault) matched the crime-scene stains collected from victims of rape up to two years later.

The Government contended that the retention of fingerprints, cellular samples and DNA profiles could not be regarded as excessive since they were kept for specific limited statutory purposes and stored securely and subject to the safeguards identified. Their retention was neither warranted by any degree of suspicion of the applicants' involvement in a crime or propensity to crime nor directed at retaining records in respect of investigated alleged offences in the past. The records were retained because the police had already been lawfully in possession of them, and their retention would assist in the future prevention and detection of crime in general by increasing the size of the database. Retention resulted in no stigma and produced no practical consequence for the applicants unless the records matched a crime-scene profile. A fair balance was thus struck between individual rights and the general interest of the community and fell within the State's margin of appreciation.

The Court recalls its well established case-law that the wording ‘in accordance with the law’ requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual — if need be with appropriate advice — to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66–68, Series A no. 82; Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; and Amann cited above, § 56).

The level of precision required of domestic legislation — which cannot in any case provide for every eventuality — depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI, with further references).

The Court notes that section 64 of the PACE provides that the fingerprints or samples taken from a person in connection with the investigation of an offence may be retained after they have fulfilled the purposes for which they were taken (see paragraph 27 above). The Court agrees with the Government that the retention of the applicants' fingerprint and DNA records had a clear basis in the domestic law. There is also clear evidence that these records are retained in practice save in exceptional circumstances. The fact that chief police officers have power to destroy them in such rare cases does not make the law insufficiently certain from the point of view of the Convention.

As regards the conditions attached to and arrangements for the storing and use of this personal information, section 64 is far less precise. It provides that retained samples and fingerprints must not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.

The Court agrees with the applicants that at least the first of these purposes is worded in rather general terms and may give rise to extensive interpretation. It reiterates that it is as essential, in this context, as in telephone tapping, secret surveillance and covert intelligence-gathering, to have clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness (see, mutatis mutandis, Kruslin v. France, 24 April 1990, §§ 33 and 35, Series A no. 176-A; Rotaru, cited above, § 57–59; Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006-…; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 75–77, 28 June 2007; Liberty and Others v. the United Kingdom, no. 58243/00, § 62–63, 1 July 2008). The Court notes, however, that these questions are in this case closely related to the broader issue of whether the interference was necessary in a democratic society. In view of its analysis in paragraphs 105–126 below, the Court does not find it necessary to decide whether the wording of section 64 meets the ‘quality of law’ requirements within the meaning of Article 8 § 2 of the Convention.

The Court agrees with the Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection, and therefore, prevention of crime. While the original taking of this information pursues the aim of linking a particular person to the particular crime of which he or she is suspected, its retention pursues the broader purpose of assisting in the identification of future offenders.