Communicated on 18 January 2021 Published on 8 February 2021

THIRD SECTION

Application no. 45015/11 A.S. against Russia lodged on 1 July 2011

STATEMENT OF FACTS

The applicant is a Russian national, who was born in 1981 and lives in Kazan.

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

In 2002 criminal proceedings were instituted against the applicant on suspicion of abduction of a person and infliction of grave injuries leading to death, offences punishable under Articles 126 § 3 and 111 § 4 of the Criminal Code respectively. On an unspecified date the criminal case was submitted to the Nizhnekamsk Town Court, Republic of Tatarstan, for trial.

Between 2002 and 2007 the domestic courts examined the criminal case against the applicant in three sets of proceedings.

In the first set of proceedings the applicant was found guilty of infliction of grave injuries leading to death and was acquitted of abduction charges. However, in 2003 the Supreme Court of the Republic of Tatarstan (“the Supreme Court”), by way of supervisory review, quashed the applicant ’ s conviction and remitted the case for a new examination to the court of first instance.

In the second round of the proceedings the applicant was again found guilty of infliction of grave bodily injuries leading to death. In 2006, the Supreme Court, by way of supervisory review, quashed the applicant ’ s conviction and remitted the case for a new examination to the court of first instance.

In the third set of the proceedings, which ended on 27 April 2007, the applicant was acquitted of all charges against him.

On 3 October 2010 the Ministry of the Interior, at the applicant ’ s request, issued him with so-called certificate “on the existence/absence of convictions or the existence/absence of the fact of criminal prosecution or the discontinuation of a criminal prosecution”, which contained information on the criminal proceedings against him which ended in his acquittal.

The applicant brought court proceedings against the Ministry of the Interior. He submitted that the processing by the ministry of the data relating to the criminal proceedings against him was unlawful on the following grounds:

- he was acquitted of all charges;

- the processing of such data had substantially restricted his right to employment.

On 7 October 2010 the Vakhitovskiy District Court of Kazan, dismissed the applicant ’ s claims having found that according to the ministry ’ s order no. 612 of 9 July 2007, data concerning persons whose criminal convictions had been quashed, were to be stored indefinitely.

On 28 February 2011 the Supreme Court upheld that judgment.

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.

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.

(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);

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, in substance, that the continued processing by the Ministry of the Interior of the personal data relating to the criminal proceedings against him which ended in his acquittal is in breach of his right to respect for his private life.

QUESTIONS TO THE PARTIES

1. 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 ended in his acquittal, and continue processing those data?

2. 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 of the Convention (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § § 101 ‑ 26, ECHR 2008 ? In particular:

(a) Which provisions of domestic law govern the processing of personal data concerning criminal proceedings which ended in acquittal?

(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 sufficiently clear to give the applicant an adequate indication that the data concerning the criminal proceedings against him would be processed even in case when they end in his acquittal and also as to the maximum duration of such processing? What is the maximum period during which information on criminal proceedings which ended in acquittal may be processed?

(c) Does Russian law provide, for each stage of the processing of data relating to criminal proceedings which ended in acquittal, appropriate and adequate safeguards against arbitrary and disproportionate interference with the right to respect for private life?