Communicated on 18 January 2021 Published on 8 February 2021

THIRD SECTION

Application no. 27982/19 T.R. against Russia lodged on 15 May 2019

STATEMENT OF FACTS

The applicant is a Russian national, who was born in 1982 and lives in Chita, Zabaykalskiy Region. He is represented before the Court by Mr G. Vaypan , a lawyer practising in Moscow.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 15 August 2002 criminal proceedings were instituted against the applicant on suspicion of a criminal offence punishable under Article 213 § 1of the Criminal Code (hooliganism), as in force at the material time.

In October 2002 the criminal proceedings were suspended.

In 2003 the criminal offence of which the applicant was suspected was decriminalised.

On 20 June 2013 the criminal proceedings resumed.

On 20 February 2017 the criminal proceedings were discontinued in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure, in the absence of corpus delicti (see “Relevant domestic law” below).

On 6 July 2017 the Ministry of the Interior, at the applicant ’ s request, issued two so-called certificates “on the existence/absence of convictions or existence/absence of the fact of a criminal prosecution or the discontinuation of a criminal prosecution”, which contained information on the criminal proceedings against the applicant which were discontinued.

The certificate stated that on 6 March 2013 the applicant was prosecuted on suspicion of the offence punishable under Article 213 § 1of the Criminal Code and that on 20 February 2017 the case was terminated in accordance with Article 24 § 2 of the Code of Criminal Procedure (see “ Relevant domestic law ” below).

On 30 October 2017 the applicant brought court proceedings against the Ministry of Interior. He submitted that, contrary to the information provided in the certificate, the criminal proceedings against him had been instituted on 15 August 2002 and had been discontinued in accordance with Article 24 § 1 of the Code of Criminal Procedure, in the absence of corpus delicti , which was a rehabilitative ground (see “ Relevant domestic law ” below).

The applicant further submitted that Section 17 (3) of the Police Act (see “ Relevant domestic law ” below) set out an exhaustive list of data which could be collected by police. Police had the right to collect data concerning individuals in respect of whom a decision to terminate criminal proceedings was taken on non-rehabilitative grounds. The Police Act did not make any reference to data concerning individuals in respect of whom criminal proceedings were discontinued in the absence of corpus delicti, which was a rehabilitative ground. Therefore, the Ministry of the Interior did not have any legal basis for processing the data concerning the criminal proceedings against him which had been discontinued in the absence of corpus delicti.

On 13 February 2018 the Tsentralnyy District Court of Chita (“the District Court”) granted the applicant ’ s claim in so far as the certificate indicated the wrong date on which the criminal proceedings against the applicant had been initiated and made wrong reference to Article 24 § 2 of the Code of Criminal Procedure and ordered to indicate in the certificate that the criminal proceedings against the applicant had been discontinued on rehabilitative grounds. The District Court further held that since the proceedings against the applicant had been discontinued on rehabilitative grounds, the Ministry of the Interior had no right to refer to those proceedings in the certificate. The District Court dismissed the remainder of the applicant ’ s claims.

On 20 June 2018 the Zabaykalskiy Regional Court (“the Regional Court”) upheld the judgment of 13 February 2018 in so far as it corrected the error in the date on which the criminal proceedings against the applicant had been initiated, and quashed the judgment in the remaining part. The Regional Court held that the fact that the criminal proceedings against the applicant had been discontinued in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure did not automatically mean that they had been discontinued on rehabilitative grounds. Therefore, the Ministry of Interior had the right to process the data concerning the criminal proceedings against the applicant in accordance with the Police Act and the Ministry of the Interior ’ s order of 12 February 2014 (see “ Relevant domestic law ” below). The Regional Court issued a new decision dismissing the applicant ’ s claims.

On 9 October 2018 a judge of the Regional Court refused to refer the applicant ’ s first cassation appeal to the court of cassation.

On 15 January 2019 a judge of the Supreme Court of the Russian Federation refused to refer the applicant ’ s second cassation appeal to the court of cassation.

Article 24 of the Constitution provides that collecting, keeping, using and disseminating information about a person ’ s private life is not permitted without his or her consent.

Article 24 § 1 (2) of the Code provides that a criminal case shall be terminated if the act does not contain all the constituent elements of an offence.

Article 24 § 2 of the Code provides that a criminal case shall be terminated on the grounds specified in Article 24 § 1 (2) of this Article when a new criminal law has eliminated the criminality and punishability of the act before the judgment has acquired legal force.

Section 5 lays down the principles of the processing of personal data. In particular, the processing of personal data should come to an end once specific and lawful aims, to be defined in advance, have been achieved. No processing of personal data must take place where it is incompatible with the aims of processing.

The storage of personal data should be carried out in a form which allows identification of the subject of the data for a period no longer than necessary for the achievement of the aims of processing, provided that the storage term is not defined by a federal law or a contract to which the subject of the data is a party, beneficiary or guarantor. Personal data subject to processing should be destroyed or anonymised once the aims pursued have been achieved or where it is no longer necessary to pursue those aims, unless a federal law provides otherwise.

Section 17(1) provides that the police have the right to process individuals ’ personal data as necessary for the fulfilment of their obligations, and subsequently to insert the received information into databases. The updating of databases is carried out in accordance with the requirements provided for in the legislation of the Russian Federation.

Section 17(3) provides a list of data to be inserted into databases. In particular, subparagraph 4 provides that data concerning “an individual in respect of whom a decision to terminate the criminal proceedings was taken because the criminal prosecution was time-barred, following a friendly settlement reached by the parties, following the application of an Amnesty Act or following a formal apology given by that individual” must be included in the databases.

Section 17(4) provides that the police must protect data contained in databases from illegal or accidental access, destruction, copying, dissemination or other unlawful actions.

Under section 17(5), information contained in databases may be provided to State authorities or their officials only in cases defined by federal law. It may be provided to law-enforcement authorities of foreign States and to international police organisations in accordance with international treaties to which the Russian Federation is a party.

Section 17(8) provides that personal data contained in databases must be destroyed once the aims pursued by their processing have been achieved or in cases where it is no longer necessary to pursue those aims.

The order approved the rules on the functioning (“the Statute”) of the Ministry of the Interior.

Article 11 § 65 of the Statute provides that the Ministry of the Interior had the right to establish and run various databases in accordance with the legislation of the Russian Federation.

(a) Order no. 1070 of 29 December 2005 on the centralised registration of crimes;

(b) Order no. 612 of 9 July 2007 (not published in a generally accessible official publication);

(c) Order no. 1121 of 7 November 2011 approving the rules on the issuing of certificates on the existence/absence of a conviction and/or of the fact of a criminal prosecution or the termination of a criminal prosecution;

(d) Order no. 89 of 12 February 2014 approving the guidelines for running and using centralised operational reference databases, criminal records and investigation databases generated by the agencies of the Ministry of the Interior (not published in a generally accessible official publication);

Addendum no. 1 to the order concerning the rules on data collection, and running and using databases of individuals subjected to criminal prosecution (not published in a generally accessible official publication)

(e) Order no. 949 of 21 December 2017 on certain measures aimed at guaranteeing the enforcement by the Ministry of the Interior of obligations provided for by the Personal Data Act of 27 July 2006;

The order approved the rules on the processing of personal data within the system of the Ministry of the Interior.

Article 1 of the Rules states that the Rules establish procedures aimed at finding and preventing breaches of domestic law in the sphere of personal data. They also establish the categories of person whose personal data are processed, the purpose of processing the data, the time-limits for processing and storage of data, and the procedure for the destruction of data once the aims pursued by the processing have been achieved or in other cases provided for by law.

Article 9 provides a list of categories of personal data which may be processed. Paragraph 28 provides that information on the fact of criminal prosecution and on the termination of criminal prosecution may be processed.

Article 11 sets out a list of categories of persons whose personal data may be processed. Paragraph 10 provides that data on persons convicted of a crime may be processed.

Chapter IV of the Rules is entitled “Time-limits for the processing and storage of personal data, procedure for their destruction once the aims of processing have been achieved or in other cases provided for by law”.

Article 12 provides that the time-limits for the processing and storage of personal data within the system of the Ministry of the Interior are defined in accordance with the legislation of the Russian Federation and statutory instruments of the Ministry of the Interior. If such time-limits are not specified by the legislation and statutory instruments of the Ministry of the Interior, personal data may not be processed and stored for longer than required in order to achieve the aims pursued by the processing and storage.

Article 15 provides that personal data must be destroyed once the aims of processing have been achieved or if there is no longer any need to pursue those aims.

For a summary of relevant texts, see M.M. v. the United Kingdom (no. 24029/07, §§ 122-42, 13 November 2012).

COMPLAINT

The applicant complains, under Article 8 of the Convention, that the continued processing and, in particular, the storage by the Ministry of the Interior of his personal data relating to the discontinued criminal proceedings against him are in breach of his right to respect for his private life.

QUESTIONS TO THE PARTIES

1. Were the criminal proceedings initiated against the applicant on 15 August 2002 discontinued on non-rehabilitative or rehabilitative grounds?

2. Has there been an interference with the applicant ’ s right to respect for his private life within the meaning of Article 8 § 1 of the Convention? Did the Ministry of the Interior process the applicant ’ s data relating to the criminal proceedings against him which had been discontinued, and continue processing those data?

3. If so, was that interference in accordance with the law (see M.M. v. the United Kingdom , no. 24029/07 , 13 November 2012), did it pursue one or more legitimate aims referred to in Article 8 § 2 of the Convention and was it necessary in terms of Article 8 § 2 (see M.K. v. France , no. 19522/09, § 37-47, 18 April 2013 ?) In particular:

(a) Which provisions of domestic law govern the processing of personal data concerning criminal proceedings which were discontinued?

(b) Is the domestic law compatible with the rule of law, accessible and foreseeable as required by Article 8 of the Convention (see M.M. v. the United Kingdom , cited above, §§ 191-207 )?

- Were all those provisions – in particular, Ministry of the Interior Orders nos. 612 and 89 of 9 July 2007 and 12 February 2014 respectively – published in a generally accessible official publication ?

- Were the terms of the law governing the processing of data relating to criminal proceedings sufficiently clear to give the applicant an adequate indication that the data concerning the criminal proceedings against him would be processed after those proceedings had been terminated and also as to the maximum duration of such processing? What is the maximum period during which information on criminal proceedings which were terminated may be processed?

(c) Does Russian law provide, for each stage of the processing of data relating to criminal proceedings which were terminated, appropriate and adequate safeguards against arbitrary and disproportionate interference with the right to respect for private life (see M.M. , cited above, §§ 195-207)?