Communicated on 18 April 2016

FIRST SECTION

Applications nos 53205/13 and 63320/13 Jovče TRAJKOVSKI against the former Yugoslav Republic of Macedonia and Dimitar ČIPOVSKI against the former Yugoslav Republic of Macedonia lodged on 16 August 2013 and 4 October 2013 respectively

STATEMENT OF FACTS

The applicant in the first case, Mr Jovče Trajkovski , was born in 1982 and the applicant in the second case, Mr Dimitar Čipovski , in 1979. Both applicants live in Skopje. They are Macedonian nationals and they are represented before the Court by Ms N. Boškova , a lawyer practising in Skopje.

A. The circumstances of the case

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

1. Application no. 53205/13

The applicant is a former drug addict. On 11 February 2010 two police officers approached him while he was walking on a street in Skopje and questioned him about a steering wheel lock which he was holding at the time. He answered that he had found it on the street. He was taken to a police station where police officers continued to question him about any thefts that he might have committed. A certificate for items that were seized by the police (regarding the steering wheel lock) was issued to the applicant. Without any further information being given to him, a mouth swab was taken from the applicant in order for his DNA profile to be determined . He was then taken to Skopje Hospital for his regular methadone therapy.

On 25 March 2010 the applicant lodged an application with the Personal Data Protection Directorate (“the Directorate”) for a finding that the police officers had violated his right to privacy. He contended that they had taken cellular material from his mouth unlawfully, without a court order and without his consent. He argued that there was no statutory basis for the police to take and retain DNA material.

By a decision of 12 April 2010, the Directorate dismissed his application, finding that the police officers “had taken [the applicant ’ s] DNA sample and processed it in order to detect any criminal and minor offences, that is, to establish the identity of a person suspected of having committed any crime punishable by law”. Relying on section 5(1 )( 1) and (2) of the Personal Data Protection Act, sections 14 and 66 of the Police Act and section 6 of the Rules on Police Conduct (see “Relevant domestic law” below), the Directorate found that the police had been authorised to take, retain and process the personal data of an individual when there was a reasonable suspicion that he or she had committed a punishable crime. Such actions were aimed at the prevention and detection of crime. Furthermore, the police were authorised to establish the identity of a person on the basis, inter alia , of a DNA sample.

The applicant challenged that decision before the Administrative Court, arguing that there were no statutory provisions regarding the collection, storage and processing of DNA material. In that connection he submitted that the storage of DNA material had not been limited in time. Furthermore, given that his identity had been known to the authorities at the relevant time, there had been no justification to take a DNA sample from him. It could have been used for “any future investigations which mark out [the applicant]”.

On 6 June 2012 the Administrative Court dismissed the applicant ’ s complaint. In addition to the arguments given in the Directorate ’ s decision, the court referred to section 69 of the Police Act (see “Relevant domestic law” below) and held that the police had been authorised to collect and process personal data, including genetic data, for the purposes of “the detection and prevention of criminal and minor offences and for the detection and apprehension of perpetrators, i.e. regarding an individual about whom there was a reasonable suspicion that he or she has committed or participated in the planning, financing or execution of a criminal offence, as was the case with [the applicant].”

On 24 January 2013 the Higher Administrative Court upheld the lower court ’ s decision, finding no grounds to depart from the reasons given therein. Using the DNA sample taken from the applicant in order to identify him in other criminal proceedings, which had led to a conviction for aggravated theft (the theft of a car radio, committed on 30 November 2009), did not mean that there had been a violation of his right to privacy.

2. Application no. 63320/13

The applicant is a former drug addict. On 8 October 2009 he was arrested in his home and taken to a police station, where he was interrogated in relation to allegations of theft. An identity parade was organised and a mouth swab was taken from the applicant. He was not informed of the purpose of taking the mouth swab, nor was the collection and processing of the sample ordered by an investigating judge.

On 26 May 2010 the applicant applied to the Directorate for a finding to establish that the police had violated his right to privacy by taking and processing his DNA material. He stated that there was no legislative regulation for the collection, storage and processing of DNA material. A DNA sample had been taken from him without a court order and without his consent.

In reply to the applicant ’ s application, the Ministry of the Interior submitted several documents. It stated that on the basis of, inter alia , an Instruction on the manner and methods for forensic registration and identification dated 25 February 2009, the Forensics Bureau within the Ministry of the Interior had requested that a DNA sample be taken from the applicant. Attempts by the applicant to obtain a copy of the Instruction were to no avail because the Ministry of the Interior stated that it “is not of a public nature, i.e. the Instruction is an internal act ... and has no effect outside the Ministry ...”

On 21 July 2010 the Directorate dismissed the applicant ’ s request. It established that the applicant had been arrested without a court order on account of a reasonable suspicion of theft. In the identity parade the victim had identified him as the perpetrator. The police had taken a DNA sample from the applicant ’ s mouth and submitted a criminal complaint against him. Relying on section 5(1 )( 1) and (2) of the Personal Data Protection Act, sections 14 and 66 of the Police Act and sections 6 and 7 of the Rules on Police Conduct (see “Relevant domestic law” below), the Directorate found that the police had undertaken investigative measures in respect of the applicant, who had been suspected of having committed an aggravated theft. The police had therefore acted in accordance with the law and had not breached the Personal Data Protection Act.

The applicant challenged that decision, arguing that there was no legislative regulation of the collection, storage and processing of DNA material as a specific category of personal data that contained information about individuals, including information about their health and genetic make-up. Furthermore, there was no legislation on the use of DNA or on time-limits for storing it. As there had been other means to establish his identity, the applicant maintained that the collection and processing of his DNA had not been justified or necessary in his case.

On 6 June 2012 the Administrative Court dismissed the applicant ’ s complaint, finding that the Ministry of the Interior had been authorised and had a statutory duty to collect and process personal data, including genetic material, in order to prevent and detect criminal and minor offences and to find and apprehend the perpetrators of such crimes.

The applicant appealed. He submitted that his identity had been known to the police. Since the criminal complaint against him had pre-dated the analysis of his DNA, the relevant material had been unlawfully taken from him and stored. The criminal complaint concerned charges of aggravated theft and the Ministry of the Interior had confirmed in similar proceedings that no DNA analysis had ever been carried out in respect of suspected crimes of theft and aggravated theft. In that connection, the applicant referred to a decision of the Directorate, no.09-30/7, (see “R elevant domestic practice” below). Lastly, the applicant submitted that in the absence of specific domestic legislation regarding the collection, storing and processing of DNA material, the Administrative Court had been obliged to apply the relevant international legal instruments, including the Convention and the Court ’ s practice. As to the latter, he referred to the case of S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, ECHR 2008).

On 12 March 2013 the Higher Administrative Court dismissed the applicant ’ s appeal and upheld the lower court ’ s decision. Relying on the legislation specified above, the court held that the police had taken and processed the DNA material because the applicant had been suspected of having committed a crime. The genetic material had been taken and processed by authorised police officers in a procedure specified in the Police Act and the Rules on Police Conduct in order to establish the applicant ’ s identity.

On an unspecified date, the applicant was convicted of theft and given a suspended prison term ( K.br.3163/10 ). The analysis of his DNA make-up was not submitted in evidence against him.

B. Relevant domestic law and practice

1. Relevant domestic law

a) Personal Data Protection Act of 2005

Section 5(1)(1) and (2) of the Personal Data Protection Act provides that personal data is processed in accordance with the law and is collected for specific and clear aims specified by law. It is processed in a manner suitable to those aims.

b) Police Act of 2006

Section 14 of the Police Act provides that a police officer can take investigative measures in relation to a person who is suspected of having committed a crime.

Under section 66(1) the police are authorised to collect, store, process, examine, transfer and delete personal data under conditions specified by law and administer a database of personal data for the prevention and detection of criminal and minor offences and in order to uncover the perpetrators of such acts.

Section 69 provides for the police to administer a database of persons for whom DNA profiles have been compiled.

c) Rules on Police Conduct

Sections 6 and 7 of the Rules set out the powers of the police to establish the identity of a person who is suspected of having committed a crime. The identity of an individual can be established, inter alia , on the basis of a DNA sample.

2. Relevant domestic practice

By a decision of 11 June 2010, the Directorate dismissed an application by a former drug addict who alleged, similarly to the present cases, that police officers had taken a mouth swab for compiling his DNA profile in violation of his privacy. In the decision, the Directorate referred to a statement of a representative of the Ministry of the Interior that cellular material had never been taken in relation to suspected crimes of theft and aggravated theft (decision no.09-30/7).

COMPLAINTS

The applicants complain under Article 8 of the Convention that the collection, storage and processing of their DNA material violated their right to respect for their private life. In that connection they allege that there was no legislative framework to clearly regulate the taking, storing, use, processing and deletion of DNA material. The legislation on which the authorities relied in their cases did not meet the “quality of law” requirement under Article 8 of the Convention.

QUESTIONS TO THE PARTIES

Was the interference with the applicants ’ right to respect for their private life, in respect of taking and storing their DNA material, “in accordance with the law”? In particular, was the legislation that was applied in the applicants ’ cases accessible and sufficiently precise for the purposes of Article 8 of the Convention? If so, was that interference “necessary in a democratic society” under the terms of that provision? The Government are invited to provide more details as to the conditions and arrangements for the taking, storing and use of DNA samples in criminal proceedings .