GRAND CHAMBER

CASE OF S. AND MARPER v. THE UNITED KINGDOM

( Applications nos. 30562/04 and 30566/04 )

JUDGMENT

STRASBOURG

4 December 2008

In the case of S. and Marper v. the United Kingdom ,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Jean-Paul Costa , President , Christos Rozakis , Nicolas Bratza , Peer Lorenzen , Françoise Tulkens , Josep Casadevall , Giovanni Bonello , Corneliu Bîrsan , Nina Vajić , Anatoly Kovler , Stanislav Pavlovschi , Egbert Myjer , Danutė Jočienė , Ján Šikuta , Mark Villiger , Päivi Hirvelä , Ledi Bianku , judges , and Michael O ’ Boyle , Deputy Registrar ,

Having deliberated in private on 27 February and 12 November 2008 ,

Delivers the following judgment, which was adopted on the las t - mentioned date:

PROCEDURE

1 . The case originated in two applications ( n os . 30562/04 and 30566/04 ) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr S. (“ the first applicant”) and Mr Micha e l Marper (“the second app licant ”), on 16 August 2004 . The President of the Grand Chamber acceded to the first applicant ’ s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).

2 . The applicants , who were granted legal aid, were represented by Mr P. Mahy of Messrs Howells, a solicitor practi s ing in Sheffield. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger , Foreign and Commonwealth Office.

3 . The applicants complained under Articles 8 and 14 of the Convention that the authorities had continued to retain their fingerprints and cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued.

4 . The applications were allocated to the Fourth Section of the Court (Rule 52 § 1 ). On 16 January 2007 they were declared admissible by a Chamber of that Section composed of Josep Casadevall, President , Nicolas Bratza, Giovanni Bonello, Kristaq Traja, Stanislav Pavlovschi, Ján Šikuta, Päivi Hirvelä , judges, and Lawrence Early , Section Registrar.

5 . On 10 July 2007 the Chamber relinquished jurisdiction in favour of the Grand Chamber, neither part y having objected to relinquishment (Article 30 of the Convention and Rule 72).

6 . The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

7 . The applicants and the Government each filed memorial s on the merits. In addition, third-party submissions were received from Ms A . Fairclough on behalf of the National Council for Civil Liberties (“Liberty” ) and from Covington and Burling LLP on behalf of Privacy International , who had been granted leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). Both parties replied to Liberty ’ s submissions , and t he Government also replied to the comments by Privacy International (Rule 44 § 5) .

8 . A hearing took place in public in the Human Rights Building , Strasbourg , on 27 February 2008 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government Mrs E. Willmott , Agent , Mr R abinder Singh QC , Mr J. Strachan , Counsel , Mr N. Fussell , Ms P. Mc F arlane , Mr M. Prior , Mr S. Bramble , Ms E. Rees , Mr S. Sen ,              Advisers , Mr D. Gourley , Mr D. Loveday , Observers ;

(b) for the applicants

Mr S. Cragg , Mr A. Suterwalla , Counsel , Mr P. Mahy , Solicitor .

The Court heard addresses by Mr Cragg and Mr R abinder Singh QC , as well as their answers to questions put by the Court .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9 . The applicants were born in 1989 and 1963 respectively and live in S heffield .

10 . The first applicant , Mr S., was arrested on 19 January 2001 at the age of 11 and charged with attempted robbery. His fingerprints and DNA samples [1] were taken. He was acquitted on 14 June 2001 .

11 . The second applicant , Mr Michael Marper, was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. Before a pre-trial review took place, he and his partner had reconciled, and the charge was not pressed. On 11 June 2001, the Crown Prosecution Service served a notice of discontinuance on the applicant ’ s solicitors, and on 14 June 2001 the case was formally discontinued.

12 . Both applicants asked for the ir fingerprints and DNA samples to be destroyed, but in both cases the police refused. The applicants applied for judicial review of the police decisions not to destroy the fingerprints and samples. On 22 March 2002 the Administrative Court (Rose LJ and Leveson J) rejected the application [ [2002] EWHC 478 (Admin)].

13 . On 12 September 2002 t he Court of Appeal upheld the decision of the Administrative Court by a majority of two (Lord Woolf CJ and Waller LJ) to one (Sedley LJ) [[2003] EWCA Civ 1275]. As regard s the necessity of retaining DNA samples, Lord Justice Waller stated:

“... [F] ingerprints and DNA profiles reveal only limited personal information. The physical samples potentially contain very much greater and more personal and detailed information. The anxiety is that science may one day enable analysis of samples to go so far as to obtain information in relation to an individual ’ s propensity to commit certain crime and be used for that purpose within the language of the present section [ s ection 82 of the Criminal Justice and Police Act 2001] . It might also be said that the law might be changed in order to allow the samples to be used for purposes other than those identified by the section. It might also be said that while samples are retained there is even now a risk that they will be used in a w ay that the law does not allow. S o , it is said, the aims could be achieved in a less restrictive manner ... Why cannot the aim be achieved by retention of the profiles w ithout retention of the samples?

The answer to [these] points is as I see it as follows. First the retention of samples permits ( a) the checking of the integrity and future utility of the DNA database syste m; (b) a reanalysis for the up grading of DNA profiles where new technology can improve the discriminating power of t he DNA matching process; (c) re analysis and thus an ability to extract other DNA markers and thus offer benefits in terms of speed, se nsitivity and cost of searches of the database; (d) further analysis in investigations of alleged miscarriages of justice; and (e) further analysis so as to be able to identify any analytical or process errors. It is these benefits which must be balance d against the risks identified by Liberty . In relation to those risks, the position in any event is first that any change in the law w ill have to be itself C onvention compliant; second any change in practice would have to be C onvention compliant; and third unlawfulness must not be assumed. In my view thus the risks identified are not great, and such as they are they are outweighed by the benefits in achieving the aim of p rosecuting and preventing crime. ”

14 . Lord Justice Sedley considered that the power of a c hief c onstable to destroy data which he would ordinarily retain had to be exercised in every case, however rare such cases might be, where he or she was satisfied on conscientious consideration that the individual was free of any taint of suspicion. He also noted that the difference between the retention of samples and DNA profiles was that the retention of samples would enable more information to be derived than had previously been possible.

15 . On 22 July 2004 the House of Lords dismissed an appeal by the applicants. Lord Steyn, giving the lead judgment, noted the legislative history of s ection 64(1A) of the Police and Criminal Evidence Act 1984 (PACE), in particular the way in which it had been introduced by Parliament following public disquiet about the previous law, which had provided that where a person was not prosecuted or was acquitted of offences, the sample had to be destroyed and the info rmation could not be used. In two cases , compelling DNA evidence linking one suspect to a rape and another to a murder had not been able to be used, as at the time the matches were made both defendants had either been acquitted or a decision made not to proceed for the offences for which the profiles had been obtained : as a result it had not been possible to con v ict either suspect.

17 . Lord Steyn also referred to statistical evidence from which it appeared that almost 6,000 DNA profiles had been linked with crime- scene stain profiles which would have been destroyed under the former provisions. The offences involved included 53 murders, 33 attempted murders, 94 rapes, 38 sexual offences, 63 aggravated burglaries and 56 cases involving the supply of controlled drugs. On the basis of the existing records, the Home Office statistics estimated that there was a 40% chance that a crime- scene sample would be matched immediately with an individual ’ s profile on the national database. This showed that the fingerprints and samples which could now be retained had in the previous three years played a major role in the detection and prosecution of serious crime.

18 . Lord Steyn also noted that PACE deal t separately with the taking of fingerprint s and samples, the ir retention and the ir use.

19 . As to the Convention analysis, Lord Steyn inclined to the view that the mere retention of fingerprints and DNA samples did not constitute an interference with the right to respect for private life but stated that, if he were wrong in that view, he regarded any interference as very modest indeed. Questions of whether , in the future , retained samples could be misused were not relevant in respect of contemporary use of retained samples in connection with the detection and prosecution of crime. If future scientific developments required it, judicial decisions could be made, when the need occurred, to ensure compatibility with the Convention. The provision limiting the permissible use of retained material to “ purposes related to the prevention or detection of crime ...” did not broaden the permitted use unduly, because it was limited by its context.

20 . If the need to justify the modest interference with private life arose, Lord Steyn agreed with Lord Justice Sedley in the Court of Appeal that the purposes of retention – the prevention of crime and the protection of the right of others to be free from crime – were “provided for by law”, as required by Article 8 of the Convention .

21 . As to the justification for any interference, the applicants had argued that the retention of fingerprints and DNA samples created suspicion in respect of persons who had been acquitted. Counsel for the Home Secretary had contended that the aim of the retention ha d nothing to do with the past, that is, with the offence of which a person had been acquitted, but was to assist in the investigation of offences in the future. The applicants would only be affected by the retention of the DNA samples if their profiles matched those found at the scene of a future crime. Lord Steyn saw five factors which led to the conclusion that the interference was proportionate to the aim: (i) the fingerprints and samples were kept only for the limited purpose of the detection, investigation and prosecution of crime; (ii) the fingerprints and samples were not of any use without a comparator fingerprint or sample from the crime scene; (iii) the fingerprints would not be made public; (iv) a person was not identifiable from the retained material to the untutored eye ; (v) the resultant expansion of the national database by the retention conferred enormous advantages in the fight against serious crime.

22 . In reply to the contention that the same legislative aim could be obtained by less intrusive means, namely by a case-by-case consideration of whether or not to retain fingerprints and samples, Lord Steyn referred to Lord Justice Waller ’ s comments in the Court of Appeal , which read as follows:

“ I f justification for retention is in any degree to be by reference to the view of the police on the degree of innocence, then persons who have been acquitted and have their samples retained can justifiably say this stigmatises or discriminates against me – I am part of a pool of acquitted persons presumed to be innocent, but I am treated as though I was not. It is not in fact in any way stigmatising someone who has been acquitted to say simply that samples lawfully obtained are retained as the norm, and it is in the public interest in its fight against crime for the police to have as large a database as possible . ”

23 . Lord Steyn did not accept that the difference between samples and DNA profiles affected the position.

24 . The House of Lords further rejected the applicants ’ complaint that the retention of their fingerprints and samples subjected them to discriminatory treatment in breach of Article 14 of the Convention when compared to the general body of persons who had not had their fingerprints and samples taken by the police in the course of a criminal investigation. Lord Steyn held that, even assuming that the retention of fingerprints and samples fell within the ambit of Article 8 of the Convention so as to trigger the application of Article 14, the difference of treatment relied on by the applicants was not one based on “status” for the purposes of Article 14: the difference simply reflected the historical fact, unrelated to any personal characteristic, that the authorities already held the fingerprints and samples of the individuals concerned which had been lawfully taken. The applicants and their suggested comparators could not in any event be said to be in an analogous situation. Even if, contrary to his view, it was necessary to consider the justification for any difference in treatment, Lord Steyn held that such objective justification had been established: first ly , the element of legitimate aim was plainly present, as the increase in the database of fingerprints and samples promoted the public interest by the detection and prosecution of serious crime and by exculpating the innocent; secondly, the requirement of proportionality was satisfied, section 64(1A) of PACE objectively representing a measured and proportionate response to the legislative aim of dealing with serious crime.

25 . Baroness Hale of Richmond disagreed with the majority , considering that the retention of both fingerprint and DNA data constituted an interference by the S tate in a person ’ s right to respect for his private life and thus required justification under the Convention. In her opinion, this wa s an aspect of what ha d been called in form ational privacy and there could be little, if anything, more private to the individual than the knowledge of his genetic make-up . She further considered that the difference between fingerprint and DNA data bec ame more important when it c a me to justify their retention as the justifications for each of these m ight be very different. She agreed with the majority that such justifications ha d been readily established in the applicants ’ case s .

II. RELEVANT DOMESTIC LAW AND MATERIALS

A. England and W ales

1. Police and Criminal Evidence Act 1984 (PACE)

27 . As to the retention of such fingerprints and samples (and the records thereof), section 64(1A) of PACE was substituted by s ection 82 of the Criminal Justice and Police Act 2001. It provides as follows:

“Where (a) fingerprints or samples are taken from a person in connection with the investigation of an offence ; and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall 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. ...

(3) If (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) that person is not suspected of having committed the offence, they must , except as provided in the following provisions of this s ection , be destroyed as soon as they have fulfilled the purpose for which they were taken.

(3AA) Samples and fingerprints are not required to be destroyed under subsection (3) above if (a) they were taken for the purposes of the investigation of an offence of which a person has been convicted; and (b) a sample or, as the case may be, fingerprint was also taken from the convicted person for the purposes of that investigation.”

29 . The subsequent use of materials retained under s ection 64(1A) is not regulated by statute, other than the limitation on use contained in that provision. In Attorney - General ’ s Reference (No . 3 of 1999) [2001] 2 AC 91, the House of Lords had to consider whether it was permissible to use in evidence a sample which should have been de stroyed under the then text of s ection 64 of PACE. The House considered that the prohibition on the use of an unlawfully retained sample “for the purposes of any investigation” did not amount to a mandatory exclusion of evidence obtained as a result of a failure to comply with the prohibition, but left the question of admissibility to the discretion of the trial judge.

2. Data Protection Act 1998

30 . T he Data Protection Act was adopted on 16 July 1998 to give effect to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (see paragraph 50 below) . Under the Data Protection Act “personal data” means data which relate to a living individual who can be identified (a) from those data ; or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual (section 1) . “ S ensitive personal data” means personal data consisting , inter alia , of information as to the racial or ethnic origin of the data subject , the commission or alleged commission by him of any offence, or any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings (section 2) .

32 . The Information Commissioner created pursuant to the Act (as amended) has an independent duty to promote the following of good practice by data controllers and has power to make orders (“enforcement notice s ”) in this respect (section 40) . The Act makes it a criminal offence not to comply with an enforcement notice (section 47) or to obtain or disclose personal data or information contained therein without the consent of the data controller (section 55) . Section 13 affords a right to claim damages in the domestic courts in respect of contraventions of the Act.

3 . Retention Guidelines for Nominal Records on the Police National Computer 2006

33 . A set of guidelines for the retention of fingerprint and DNA information is contained in the Retention Guidelines for Nominal Records on the Police National Computer 2006 drawn up by t he Association of Chief Police Officers in England and Wales . The Guidelines are based on a format of restricting access to the Police National Computer (PNC) data, rather than the deletion of that data. They recognise that their introduction may thus have implications for the business of the non - police agencies with which the police currently share PNC data.

34 . The Guidelines set various degrees of access to the information contained on the P NC through a process of “stepping down” access. A ccess to information concerning persons who have not been convicted of an offence is automatically “stepped down” so that this information is only open to inspection by the police. A ccess to information about convicted persons is likewise “stepped down” after the expiry of certain periods of time ranging from five to thirty-five years, depending on the gravity of the offence, the age of the suspect and the sentence imposed. For certain convictions the access will never be “stepped down”.

35 . Chief p olice o fficers are the d ata c ontrollers of all PNC records created by their force. They have the discretion in exceptional circumstances to authorise the deletion of any conviction, penalty notice for disorder, acquittal or arrest histories “ owned ” by them . An “ e xceptional case procedure ” to assist c hief police o fficers in relation to the exercise of this discretion is set out in Appendix 2. It is suggested that exceptional cases are rare by definition and include those where the original arrest or sampling was unlawful or where it is established beyond doubt that no offence existed. Before deciding whether a case is exceptional, the c hief police o fficer is instructed to seek advice from the DNA and Fingerprint Retention Project.

B. Scotland

36 . Under the 1995 Criminal Procedure Act of Scotland , as subsequently amended , the DNA samples and resulting profiles must be destroyed if the individual is not convicted or is granted an absolute discharge. A recent qualification provides that biological samples and profiles may be retained for three years, if the arrestee is suspected of certain sexual or violent offences even if a person is not convicted ( section 83 of the 2006 Act, adding section 18A to the 1995 Act. ). Thereafter, samples and information are required to be destroyed unless a c hief c onstable applies to a s heriff for a two-year extension.

C. Northern Ireland

37 . The Police and Criminal Evidence Order of Northern Ireland 1989 was amended in 2001 in the same way as PACE applicable in England and Wales. The relevant provisions currently governing the retention of fingerprint and DNA data in Northern Ireland are identical to those in force in England and Wales (see paragraph 27 above).

D . Nuffield Council on Bioethics ’ report [2]

38 . According to a recent report by the Nuffield Council on Bioethics , the retention of fingerprints, DNA profiles and biological samples is generally more controversial than the taking of such bioinformation, and the retention of biological samples raises greater ethical concerns than digitised DNA profiles and fingerprints , given the differences in the level of information that could be revealed. T h e report referred , in particular , to the lack of satisfactory empirical evidence to justify the present practice of retaining indefinitely fingerprints , samples and DNA profiles from all those arrested for a recordable offence, irrespective of whether they we re subsequently charged or convicted . The report voiced particular concerns at the policy of permanently retaining the bioinformation of minors , having regard to the requirements of the 198 9 U nited N ations Convention on the Rights of the Child .

39 . The report also expressed concerns at the increasing use of the DNA data for familial searching, inferring ethnicity and non - operational research. Familial searching is the process of comparing a DNA profile from a crime scene with profiles stored on the national database , and prioritising them in terms of “ closeness ” to a match. This allow s possible genetic relatives of a n offender to be identified . F amilial searching might thus lead to revealing previously unknown or concealed genetic relationships. The report considered the use of the DNA database in searching for relatives as particularly sensitive.

40 . The particular combination of alleles [3] in a DNA profile can furthermore be used to assess the most likely ethnic origin of the donor. E thnic inferring through DNA profiles is possible as the individual “ethnic appearance” is systematically recorded on the database : when taking biological samples, police officers routinely classify suspects into one of seven “ethnic appearance” categories. Ethnicity tests on the database m ight thus provide inferences for use during a police investigation in order , for example , to help reduce a “ suspect pool ” and to inform police priorities. The report noted that social factors and policing practices lead to a disproportionate number of people from black and ethnic minority groups being stopped, searched and arrested by the police, and hence having their DNA profiles recorded; it therefore voiced concerns that inferring ethnic identity from biological samples might reinforce racist views of propensity to criminality.

III . RELEVANT NATIONAL AND INTERNATIONAL MATERIAL S

A. Council of Europe texts

Article 5 – Quality of data

“ Personal data undergoing automatic processing shall be

...

( b ) stored for specified and legitimate purpose s and not used in a way incompatible with those purpose s ;

( c ) adequate, relevant and not excessive in relation to the purposes for which they are stored;

...

( e ) preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. ”

Article 6 – Special categories of data

“ Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. ... ”

Article 7 – Data security

“ Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination. ”

Principle 2 – Collection of data

“ 2.1 . The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.

... ”

Principle 3 – Storage of data

“ 3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law.

... ”

Principle 7 – Length of storage and updating of data

“ 7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.

For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data. ”

“ 3. Use of samples and information derived therefrom

Samples collected for DNA analysis and the information derived from such analysis for the purpose of the investigation and prosecution of criminal offences must not be used for other purposes. ...

...

Samples taken for DNA analysis and the information so derived may be needed for research and statistical purposes. Such uses are acceptable provided the identity of the individual cannot be ascertained. Names or other identifying references must therefore be removed prior to their use for these purposes.

4. Taking of samples for DNA analysis

The taking of samples for DNA analysis should only be carried out in circumstances determined by the domestic law; it being understood that in some states this may necessitate specific authorisation from a judicial authority .

...

8. Storage of samples and data

Samples or other body tissue taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected.

Measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law.

Samples and other body tissues, or the information derived from them, may be stored for longer periods

– when the person so requests; or

– when the sample cannot be attributed to an individual, for example when it is found at the scene of a n offence.

Where the security of the state is involved, the domestic law of the member S tate may permit retention of the samples, the results of DNA analysis and the information so derived even though the individual concerned has not been charged or convicted of an offence. In such cases strict storage periods should be defined by domestic law.

... ”

“ 47. The working party was well aware that the drafting of r ecommendation 8 was a delicate matter, involving different protected interests of a very difficult nature. It was necessary to strike the right balance between these interests. Both the European Convention on Human Rights and the Data Protection Convention provide exceptions for the interests of the suppression of criminal offences and the protection of the rights and freedoms of third parties. However, the exceptions are only allowed to the extent that they are compatible with what is necessary in a democratic society.

...

– when there has been a conviction;

– when the conviction concerns a serious criminal offence against the life, integrity and security of a person;

– the storage period is limited strictly;

– the storage is defined and regulated by law;

– the storage is subject to control by Parliament or an independent supervisory body.”

B . Law and practice in the Council of Europe member States

49 . Complaint mechanisms before data - protection monitoring bodies and/or before courts are available in most of the member S tates with regard to decisions to take ce l lular samples or retain samples or DNA profiles .

C . European Union

50 . Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data provides that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in Article 8 of the European Convention on Human Rights and in the general principles of Community law . The Directive sets out a number of principles in order to give substance to and amplify those contained in the Data Protection Convention of the Council of Europe . It allows m ember States to adopt legislative measures to restrict the scope of certain obligations and rights provided for in the Directive when such a restriction constitutes notably a necessary measure for the prevention, investigation, detection and prosecution of criminal offences (Article 13).

Article 35 – Purpose

“ 2. ... The Contracting Party administering the file may process the data supplied ... solely where this is necessary for the purposes of comparison, providing automated replies to searches or recording ... The supplied data shall be deleted immediately following data comparison or automated replies to searches unless further processing is necessary for the purposes mentioned ... above . ”

Article 5

“ Establishment of time-limits for erasure and review

Appropriate time-limits shall be established for the erasure of personal data or for a periodic review of the need for the storage of the data. Procedural measures shall ensure that these time-limits are observed. ”

D . Case-law in other jurisdictions

54 . In the case of R . v. R . C . [ [2005] 3 SCR 99, 2005 SCC 61 ] the Supreme Court of Canada consider ed the issue of retaining a juvenile first-time offender ’ s DNA sample on the national data base . The c ourt upheld the decision by a trial judge who had found, in the light of the principles and objects of youth criminal justice legislation, that the impact of the DNA retention would be grossly disproportionate. In his opinion , Fish J observed:

“ Of more concern, however, is the impact of an order on an individual ’ s informational privacy interests. In R. v. Plant , [1993] 3 S.C.R. 281, at p. 293, the Court found that s ection 8 of the Charter protected the ‘ biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state ’ . An individual ’ s DNA contains the ‘ highest level of personal and private information ’ : S.A.B., at para graph 48. Unlike a fingerprint, it is capable of revealing the most intimate details of a person ’ s biological make - up. ... The taking and retention of a DNA sample is not a trivial matter and, absent a compelling public interest, would inherently constitute a grave intrusion on the subject ’ s right to personal and informational privacy . ”

E . U nited N ations Convention on the Rights of the Child of 1989

IV. THIRD - PART Y SUBMISSIONS

56 . The National Council for Civil Liberties (“Liberty”) submitted case-law and scientific material highlight ing, inter alia , the highly sensitive nature of cellular samples and DNA profiles and the impact on private life arising from their retention by the authorities .

57 . Privacy International referred to certain core data-protection rules and principles developed by the Council of Europe and insisted on their high relevance for the interpretation of the proportionality requirement enshrined in Article 8 of the Convention. It emphasised , in particular , the “strict periods” recommended by Recommendation No. R (92) 1 of the Committee of Ministers for the storage of cellular samples and DNA profiles. It further pointed out a disproportionate representation on the United Kingdom N ational DNA D atabase of certain groups of the population, notably youth, and the unfairness that that situation might create. The use of data for familial testing and additional research purposes wa s also of concern. Privacy International also provided a summary of comparative data on the law and practice of different countries with regard to DNA storage and stressed the numerous restrictions and safeguards which exist ed in that respect.

THE LAW

I . ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

“1. Everyone has the right to respect for his private ... life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ...”

A. Existence of an interference with private life

59 . The Court will first consider whether the retention by the authorities of the applicants ’ fingerprints , DNA profiles and cellular samples constitutes an interference with their private life.

1. The parties ’ submissions

(a) The applicants

62 . They further e mphasised that the retention of cellular samples involved a n even greater degree of interference with Article 8 rights as they contained full gene tic information about a person , including genetic information about his or her relatives . It was of no significance whether information was actually extracted from the samples or caused a detriment in a particular case as an individual was entitled to a guarantee that such information , which fundamentally belonged to him , would remain private and not be communicated or accessible without his permission.

(b) The Government

63 . The Government accepted that fingerprints, DNA profiles and samples were “personal data” within the meaning of the Data Protection Act in the hands of those who can identify the individual. They considered , however, that the mere retention of fingerprints, DNA profiles and samples for the limited use permitted under section 64 of PACE did not fall within the ambit of the right to respect for private life under A rticle 8 § 1 of the Convention. Unlike the initial taking of this data, their retention did not interfere with the physical and psychological integrity of the persons; nor did it breach their right to personal development, to establish and develop relationships with other human beings or the right to self-determination.

64 . The Government submitted that the applicants ’ real concerns related to fears about the future uses of stored samples, to anticipated methods of analysis of DNA material and to potential intervention with the private life of individuals through active surveillance. It emphasised in this connection that the permitted extent of the use of the material was clearly and expressly limited by the legislation , the technological processes of DNA profiling and the natur e of the DNA profile extracted.

65 . The profile was merely a sequence of numbers which provided a means of identifying a person against bodily tissue, containing no materially intrusive information about an individual or his personality. The DNA database was a collection of such profiles which could be searched using material from a crime scene and a person would be identified only if and to the extent that a match was obtained against th e sample. Familial searching through partial matches only occurred in very rare cases and was subject to very strict controls. Fingerprints, DNA profiles and samples were neither susceptible to any subjective commentary nor provided any information about a person ’ s activities and thus presented no risk to affect the perception of an individual or affect his or her reputation. Even if such retention were capable of falling within the ambit of Article 8 § 1 , the extremely limited nature of any adverse effects rendered the retention not sufficiently serious to constitute an interference.

2. The Court ’ s assessment

(a) General principles

(b) Application of the above principles to the present case

68 . The Court notes at the outset that all three categories of the personal information retained by the authorities in the present case , namely fingerprints, DNA profiles and cellular samples , constitute personal data within the meaning of the Data Protection Convention as they relate to identified or identifiable individual s . The Government accepted that all three categories are “personal data” within the meaning of the Data Protection Act 1998 in the hands of those who are able to identify the individual.

69 . The Convention organs have already considered in various circumstances questions relating to the retention of such personal data by the authorities in the context of criminal proceedings . As regards the nature and scope of the information contained in each of these three categories of data , the Court has distinguished in the past between the retention of fingerprints and the retention of cellular samples and DNA profiles in view of the stronger potential for future use of the personal information contained in the latter ( see Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 - XV ). T he Court considers it appropriate to examine separately the question of interference with the applicants ’ right to respect for their private li ves by the retention of their cellular samples and DNA profiles on the one hand , and of their fingerprints on the other .

( i ) Cellular samples and DNA profiles

70 . In Van d er Velden , t h e 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 speculate d on the theoretical future use of samples and that there wa s no such interference at present .

71 . T he 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 .

( ii ) Fingerprints

79 . In McVeigh and Others , t he Commission first examined the issue of the taking and retention of fingerprints as part of a series of investigative m easures . 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 ( see McVeigh and Others v. the United Kingdom (no s . 8022/77, 8025/77 and 8027/77, Commission ’ s report of 18 March 1981, D ecisions and R eports 25, p. 15, § 224).

80 . 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 call ed for refutation . The Commission noted, however, that the data at issue had been destroyed nine years later at the applicant ’ s request ( see Kinnunen v. Finland , no. 2495 0/94, Commission decision of 15 May 1996 , unreported ).

82 . 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 ).

85 . T he Court accordingly considers that the retention of fingerprints on the authorities ’ record s in connection with an identified or identifiable individual may in itself give rise, notwithstanding their objective and irrefutable character, to important private- life concerns.

B. Justification for the interference

1. The parties ’ submissions

(a) The applicants

87 . The applicants argued that the retention of fingerprints, cellular samples and DNA profiles wa s not justified under Article 8 § 2 . T he Governmen t w ere 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 investi gation of a particular offence. The applicants further submitted that there were insufficient procedural safeguards against misuse or abuse of the information. R ecords on the Police National Computer ( PNC ) were not only accessible to the police, but also to fifty-six non-police bodies, including g overnment agencies and departments , private groups such as British Telecom and the Association of British Insurers, and even certain employers. Furthermore, the PNC wa s 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 S tate had a narrow margin of appreciation in this field.

88 . 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 wa s no justification at all for the retention of cellular samples following the original generation of the DNA profile ; n or 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 prosecution s . 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 .

89 . The applicants f urther 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 whe ther 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.

(b) The Government

90 . The Government submitted that any interference resulting from the retention of the applicants ’ fingerprints, cellular samples and DNA profiles was justified under Article 8 § 2 . It was in accordance with the law as expressly provided for, and governed by section 64 of 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.

91 . 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. I t was of vital importance that law enforcement agencies t ook 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 t he 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.

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

93 . The Government also submitted specific examples of the 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.

94 . The Government contended that the retention of f ingerprints, 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.

2 . The Court ’ s assessment

(a) In accordance with the law

97 . The Court notes that section 64 of P ACE 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 2 7 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 ha ve power to destroy them in such rare cases does not make the law insufficiently certain from the point of view of the Convention .

98 . 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 .

( b ) Legitimate aim

(c) Necessary in a democratic society

(i) General p rinciples

(ii) Applica tion of these principles to the present case

105 . T he Court finds it to be beyond dispute that the fight against crime , and in particular against organised crime and terrorism, which is one of the challenges faced by today ’ s European societies, depends to a great extent on the use of modern scientific techniques of investigation and identification. T he techniques of DNA analysis were acknowledged by the Council of Europe more than fifteen years ago as offer ing advantages to the criminal- justice system (see Recommendation No. R (92) 1 of the Committee of Ministers , paragraphs 4 3-44 above ). Nor is it disputed that t he member S tates have since that time made rapid and marked progress in using DNA information in the determination of innocence or guilt .

106 . However, while it recognises the importance of such information in the detection of crime , the Court must delimit the scope of its examination . The question is not whether the retention of fingerprints, cellular samples and DNA profiles may in general be regarded as justified under the Convention. T he only issue to be considered by the Court is whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted , of certain criminal offences, was justified under Article 8 § 2 of the Convention.

107 . The Court will consider this issue with due regard to the relevant instruments of the Council of Europe and the law and practice of the other Contracting States. The core principles of data protection require the retention of data to be proportionate in relation to the purpose of collection and insist on limited periods of storage (see paragraphs 41 -4 4 above ). These principles appear to have been consistently applied by the Contracting States in the police sector in accordance with the Data Protection Convention and subsequent Recommendations of the Committee of Ministers (see paragraphs 4 5 -4 9 above).

108 . As regards , more particularly , cellular samples, most of the Contracting States allow these materials to be taken in criminal proceedings only from individuals suspected of having committed offences of a certain minimum gravity. In the great majority of the Contracting States with functioning DNA databases , samples and DNA profiles derived from those samples are required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge. A restricted number of exceptions to this principle are allowed by some Contracting States (see paragraphs 4 7 -4 8 above).

109 . The current position of Scotland , as a part of the United Kingdom itself, is of particular significance in this regard . As noted above (see paragraph 36), the Scottish p arliament voted to allow retention of the DNA of unconvicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the DNA sample and data for a further two years with the consent of a sheriff .

110 . This position is notably consistent with Recommendation No. R (92) 1 of the Committee of Ministers , which stresses the need for a n approach which discriminates between different kinds of cases and for the application of strictly defined storage periods for data , even in more serious cases (see paragraphs 4 3 -4 4 above ). Against this background, England , Wales and Northern Ireland appear to be the only jurisdictions with in the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence.

111 . The Government lay emphasis on the fact that the United Kingdom is in the vanguard of the development of the use of DNA samples in the detection of crime and that other States have not yet achieved the same maturity in terms of the size and resources of DNA databases. It is argued that the comparative analysis of the law and practice in other States with less advanced systems is accordingly of limited importance.

112 . The Court cannot, however, disregard the fact that, notwithstanding the advantages provided by comprehensive extension of the DNA database , other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life. The Court observes that the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal- justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. In t he Court ’ s view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. The Court considers that any S tate claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.

113 . In the present case , the applicants ’ fingerprints and cellular samples were taken and DNA profiles obtained in the context of criminal proceedings brought on suspicion of attempted robbery in the case of the first applicant and harassment of his partner in the case of the second applicant . T he data were retained on the basis of legislation allowing for the ir indefinite retention , despite the acquittal of the former and the discontinuance of the criminal proceedings against the latter.

114 . The Court must consider whether the permanent retention of fingerprint and DNA data of all suspected but unconvicted people is based on relevant and sufficient reasons.

116 . The applicants, however, assert that the statistics are misleading, a view supported in the Nuffield Council on Bioethics ’ r eport. It is true, as pointed out by the applicants, that the figures do not reveal the extent to which this “ link ” with crime scenes resulted in convictions of the persons concerned or the number of convictions that were contingent on the retention of the samples of unconvicted persons. Nor do they demonstrate that the high number of successful matches with crime - scene stains was only made possible through indefinite retention of DNA records of all such persons. At the same time, in the majority of the specific cases quoted by the Government (see paragraph 93 above) , the DNA records taken from the suspects produced successful matches only with earlier crime-scene stains retained on the database. Yet such matches could have been made even in the absence of the present scheme, which permits the indefinite retention of DNA records of all suspected but unconvicted persons.

117 . While neither the statistics nor the examples provided by the Government in themselves establish that the successful identification and prosecution of offenders could not have been achieved without the permanent and indiscriminate retention of the fingerprint and DNA records of all persons in the applicants ’ position , t he Court accepts that the extension of the database has nonetheless contributed to the detection and prevention of crime .

118 . The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests.

119 . In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales . The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nation al database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and a ny other special circumstances.

120 . The Court acknowledg es that the level of interference with the applicants ’ right to private life may be different for each of the three different categories of personal data retained . T he retention of cellular samples is particularly intrusive given the wealth of genetic and health information contained therein. H owever, such an indiscriminate and open-ended retention regime as the one in issue calls for careful scrutiny regardless of these differences.

121 . T he Government contend that the retention could not be considered as having any direct or significant effect on the applicants unless matches in the database were to implicate them in the commission of offences on a future occasion . The Court is unable to accept this argument and reiterates that the mere retention and storing of personal data by public authorities , however obtained, are to be regarded as having a direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data (see paragraph 6 7 above).

122 . Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect, t he Court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused ’ s innocence may be voiced after his acquittal (see Rushiti v. Austria , no. 28389/95, § 31, 21 March 2000, with further references ). It is true that t he retention of the applicants ’ private data cannot be equated with the voicing of suspicions . Nonetheless, the ir perception that they are not being treated as innocent is heightened by the fact that their data are retained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed.

124 . The Court further considers that the retention of the unconvicted persons ’ data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society . The Court has already emphasised , drawing on the provisions of Article 40 of the U nited N ations Convention on the Rights of the Child of 1989, the special position of minors in the criminal- justice sphere and has noted , in particular , the need for the protection of the ir privacy a t criminal trial s (see T. v. the United Kingdom [GC], no. 24724/94, §§ 75 and 85 , 16 December 1999 ). In the same way, the Court considers that particular attention should be paid to the protection of juveniles from any detriment that may result from the retention by the authorities of their private data following acquittals of a criminal offence . The Court shares the view of the Nuffield Council on Bioethics as to the impact on yo u ng persons of the indefinite retention of their DNA material and notes the Council ’ s concerns that the policies applied have led to the over-representation in the database of young persons and ethnic minorities who have not been convicted of any crime (see paragraphs 38-40 above) .

II . A LLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 OF THE CONVENTION

127 . The applicants submitted that they had been subject ed to discriminatory treatment as compared to others in an analogous situation, namely other unconvicted persons whose samples had still to be destroyed under the legislation. This treatment related to their status and fell within the ambit of Article 14 of the Convention , which had always been liberally interpreted. For the reasons set out in their submissions under Article 8, there was no reasonable or objective justification for the treatment, nor any legitimate aim or reasonable relationship of proportionality to the purported aim of crime prevention, in particular as regard s the samples which played no role in crime detection or prevention. It was an entirely improper and prejudicial differentiation to retain materials of persons who should be presumed to be innocent.

128 . The Government submitted that as Article 8 was not engaged , Article 14 of the Convention was not applicable. Even if it were, there was no difference of treatment as all those in an analogous situation to the applicants were treated the same and the applicants could not compare themselves with those who had not had samples taken by the police or those who consented to give samples voluntarily. In any event, any difference in treatment complained of was not based on “status” or a personal characteristic but on historical fact. If there was any difference in treatment, it was objectively justified and within the State ’ s margin of appreciation.

129 . The Court refers to its conclusion above that the retention of the applicants ’ fingerprints, cellular samples and DNA profiles was in violation of Article 8 of the Convention . In the light of th e reasoning that has led to this conclusion , the Court considers that it is not necessary to examine separately the applicants ’ complain t under Article 14 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

130 . Article 41 of the Convention provides:

“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 to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

131 . The applicants requested the Court to award them just satisfaction for non-pecuniary damage and for costs and expenses.

A. Non-pecuniary d amage

132 . The applicants claimed compensation for non-pecuniary damage in the sum of 5,000 pounds sterling (GBP) each for distress and anxiety caused by the knowledge that intimate information about each of them ha d been unjustifiably retained by the State , and in relation to anxiety and stress caused by the need to pursue this matter through the courts.

133 . The Government , referring to the Court ’ s case- law ( see, i n par ticular , Aman n v. Switzerland [GC], no. 27798/95, ECHR 2000-II ) , submitted that a finding of a violation w ould in itself constitute sufficient just satisfaction for both applicants and distinguished the present case from those cases where violations ha d been found as a result of the use or disclosure of the personal information ( see, in particular, Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V ).

B. Costs and expenses

136 . The Government qualified the applicants ’ claim as entirely unreasonable. They submitted in particular that the rates charged by the lawyers were excessive and should be reduced to no more than two-thirds of the level claimed. They also argued that no award should be made in respect of the applicants ’ decision to instruct a fo u rth lawyer at a late stage of the proceedings as it had led to the duplication of work. The Government concluded that any cost award should be limited to GBP 15,000 and in any event, to no more than GBP 20,000.

137 . The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Roche v. the United Kingdom [GC], no. 32555/96, § 182 , ECHR 2005 ‑ X ).

138 . On the one hand, the present application s w ere of some complexity as they required examination in a Chamber and in the Grand Chamber , including several rounds of observations and an oral hearing. The application also raised important legal issues and questions of principle requir ing a large amount of work . It notably required an in-depth examination of the current debate on the issue of retention of fingerprint and DNA records in the United Kingdom and a comprehensive comparative research of the law and practice of other Contracting States and of the relevant texts and documents of the Council of Europe .

139 . On the other hand , the Court considers that the overall sum of GBP 52,066.25 claimed by the applicants is excessive as to quantum. In particular, t he Court agrees with the Government that the appointment of the fo u rth lawyer in the later stage s of the proceedings may have led to a certain amount of duplication of work.

140 . Making its assessment on an equitable basis and in the light of its practice in comparable cases , the Court awards the sum of 4 2 ,000 euros (EUR) in respect of costs and expenses , less the amount of EUR 2,613.07 already paid by the Council of Europe in legal aid .

C. Default interest

141 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1 . Holds that there has been a violation of Article 8 of the Convention;

2 . Holds that it is not necessary to examine separately the complaint under Article 14 of the Convention;

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants ;

4. Holds

(a) that the respondent State is to pay the applicants , within three months, EUR 4 2 ,000 (forty - two thousand euros) in respect of costs and expenses ( inclusive of any tax which may be chargeable to the applicants ) , to be converted into pounds sterling at the rate applicable at the date of settlement, less EUR 2,613.07 already paid to the applicant s in respect of legal aid ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall b e payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants ’ claim for just satisfaction.

Done in English and in French , and delivered at a public hearing in the Human Rights Building, Strasbourg , on 4 December 2008 .

Michael O ’ Boyle   Jean-Paul Costa Deputy Registrar   President

[1] . DNA stands for deoxyribonucleic acid; it is the chemical found in virtually every cell in the body and the genetic information therein, which is in the form of a code or language, determines physical characteristics and directs all the chemical processes in the body. E xcept for identical twins, each person’s DNA is unique. DNA samples are cellular samples and any subsamples or part samples retained from these after analysis. DNA profiles are digitised information which is stored electronically on the National DNA Database together with details of the person to whom it relates.

[2] . The Nuffield Council on Bioethics is an independent expert body composed of clinicians, lawyers, philosophers, scientists and theologians established by the Nuffield Foundation in 1991. The present report was published on 18 September 2007 under the following title , The F orensic U se of B ioinformation: E thical I ssues .

[3] . An a llele is o ne of two or more alternative forms of a particular gene. Different alleles may give rise to different forms of the characteristic for which the gene codes ( World Encyclopedia , Philip ’ s, 2008 , Oxford Reference Online : Oxford University Press ) .

[4] . The law and practice in Ireland are presently governed by the Criminal Justice (Forensic Evidence) Act 1990. A new b ill has been approved by the g overnment with a view to extending the use and storage of DNA information in a national database. The b ill has not yet been approved by Parliament.

[5] . The l egislative d ecree of 30 October 2007 establishing a national DNA database was approved by the Italian g overnment and the Senate. However, the d ecree eventually expired without having been formally converted into a s tatute as a mistake in the drafting was detected. A corrected version of the decree is expected to be issued in 2008.