Communicated on 11 December 2020 Published on 11 January 2021

THIRD SECTION

Application no. 49896/19 A.K. against Russia lodged on 24 September 2019

STATEMENT OF FACTS

The applicant is a Russian national, who was born in 1973 and lives in Moscow. He is represented before the Court by Ms N.V. Yermolayeva , a lawyer practising in Moscow.

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

On 9 April 2002 the Kirovskiy District Court of Rostov-on-Don found the applicant guilty of an attempted theft and sentenced him to one-year imprisonment with one-year probation.

The Ministry of the Interior recorded the data relating to the applicant ’ s conviction and the sentence imposed in a special database.

On 11 December 2002 the Pervomayskiy District Court of Rostov ‑ on ‑ Don released the applicant from serving his sentence and lifted his conviction.

In 2011 the offence of which the applicant had been found guilty was decriminalised.

In 2018 a prospective employer refused to engage the applicant because of information on his lifted conviction which it had allegedly received from police.

On 15 February 2018 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 a criminal prosecution or the discontinuation of a criminal prosecution”, which contained information on his lifted conviction (the date of conviction, the criminal offence for which he had been convicted, the sentence imposed, the name of the court which had convicted him) and the information on the decision to lift his conviction.

In April 2018 the applicant brought court proceedings against the Ministry of Interior. He submitted that the processing of the data relating to his conviction by the ministry had been unlawful on the following grounds:

- the information on his lifted conviction was accessible not only to law ‑ enforcement bodies, but also to third parties;

- the processing of such data, including its storage and disclosure, had substantially restricted his right to employment;

- the criminal offence of which he had been convicted, was decriminalised;

- his conviction had already been lifted and therefore all the consequences of his conviction had to be annulled, including his criminal record; and

- it was no longer necessary to process the information on his conviction.

On 21 June 2018 the Zamoskvoretskiy District Court of Moscow examined the applicant ’ s case in camera and dismissed the applicant ’ s complaint having found that the Ministry of the Interior had the right to process the data relating to his conviction in accordance with section 17 of the Police Act and section 5 of the Personal Data Act (see “Relevant domestic law” below).

The District Court also made reference to the Federal Law on information, information technologies and the protection of information, Decree no. 248 of the President of the Russian Federation of 1 March 2011, to the common ministerial order of 29 December 2005, and to Orders nos. 752, 1121 and 1088 of the Ministry of the Interior of 12 July 2000, 7 November 2011 and 7 December 2012 respectively (see “Relevant domestic law” below).

On 22 October 2018 the Moscow City Court upheld that judgment.

On 8 April 2019 a judge of the Moscow City Court declined to refer the applicant ’ s first cassation appeal to the Supreme Court of the Russian Federation.

On 24 June 2019 a judge of the Supreme Court of the Russian Federation refused to refer the applicant ’ s second cassation appeal to the Supreme Court.

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 86 § 1 of the Criminal Code provides that a person found guilty of a crime shall be deemed to be convicted from the date of the entry into force of the court ’ s sentence until such time as the conviction becomes spent or is lifted. The conviction is taken into account in the event of re-offending, and when sentencing. It also entails other legal consequences in cases and in accordance with orders provided for by federal laws. Article 86 § 2 provides that an individual who has been absolved from serving a sentence will be deemed not to have been convicted.

Article 86 § 5 provides that in cases where an individual ’ s conduct after having served the sentence is irreproachable and the individual has compensated for the damage caused by the crime, a court may, at the request of that individual, lift his conviction before the expiry of the statutory period for the conviction to become spent.

Article 86 § 6 provides that after the conviction becomes spent or is lifted by the court, all the legal consequences entailed by the conviction will be annulled.

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 10(3) provides that the processing of personal data relating to convictions may be carried out by State or municipal authorities within the limits of their powers, but also by other individuals in cases and in accordance with orders established by law.

Section 10(4) provides that the processing of personal data relating to convictions should be stopped immediately if the reasons which led to the processing of such data have been eliminated, 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 2 provides that data concerning “individuals convicted of a criminal offence” will be inserted in databases. Subparagraph 6 provides that information concerning “individuals in respect of whom an Amnesty Act has been applied before the entry into force of the sentence, absolving them from serving a sentence” will also be inserted into 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 decree approved the rules on the functioning (“the Statute”) of the Ministry of the Interior, which remained in force until 21 December 2016.

Article 13 § 8 of the Statute provided that the Ministry of the Interior had the right to establish and run, in accordance with the legislation of the Russian Federation, federal databases and, in particular, databases of criminal convictions.

(a) Order no. 752 of 12 July 2000 (not published in a generally accessible official publication)

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

The order approved the rules for the centralised registration of criminal cases and crimes.

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

(d) 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

Article 74 of the Rules (addendum to the order) establishes which information should be indicated in the certificate.

(e) 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).

(f) 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)

Paragraph 15.1 of the addendum provides that data concerning criminal convictions are stored regardless of whether the conviction has become spent or has been lifted.

Paragraph 15.2 provides that data on criminal convictions are stored until the individuals concerned reach the age of 80.

(g) 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 – Addendum no. 1 to the order.

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 purpose of the processing has 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 27 provides that information on convictions, including spent and lifted convictions, may be processed.

Article 11 sets out a list of categories of person 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 the personal data relating to his criminal conviction after it had been lifted are 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? In particular, did the Ministry of the Interior process the applicant ’ s personal data related to his criminal conviction, and continue processing those data after the applicant ’ s conviction had been lifted ?

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 (see Gardel v. France , no. 16428/05, ECHR 2009 )? In particular:

(a) Which provisions of domestic law govern the processing of personal data relating to criminal convictions, and, in particular, of data on lifted convictions?

(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. 752, 612 and 89 of 12 July 2000, 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 personal data on criminal convictions sufficiently clear to give the applicant an adequate indication that the data relating to his conviction would be processed after his conviction had been lifted and also as to the maximum duration of such processing? Did the term “individuals convicted for committing a crime”, referred to in section 17 of the Police Act, refer to all individuals convicted of a criminal offence, including those whose convictions had been lifted? Does the processing of information on convictions constitute a legal consequence of conviction – as referred to in Article 86 of the Criminal Code – which should be annulled after the conviction is lifted by a court? What is the maximum period during which information on criminal convictions may be processed?

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