THIRD SECTION

Application no. 30894/09 Fuat ÖZTÜ RK against the Netherlands lodged on 28 May 2009

STATEMENT OF FACTS

1. The applicant, Mr Fuat Öztürk , is a Turkish national, who was born in 1968 and lives in Rotterdam . He is represented before the Court by Ms J. Serrarens , a lawyer practising in Maastricht .

A. The circumstances of the case

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

3. In April 2007 the applicant was detained in the Penal Institution in Dordrecht (“ Dordtse Poorten ”).

4. By letter of 2 April 2007 the Correctional Institutions Agency of the Ministry of Justice ( Dienst Justitiële Inrichtingen van het Ministerie van Justitie ) informed the Governor of the penal institution Dordtse Poorten about a project for the taking and storing of biometric data by the name of “Biometrics”. As part of this project, the Governor was asked to take biometric data of certain prisoners in his institution.

5. As one of the prisoners chosen, the applicant was informed by letter of the intention of the Governor to take the applicant ’ s fingerprints and digital photograph. The letter did not provide information on the storage or use of the taken data. When asked, the penal institution ’ s staff members told the applicant that the data would be stored for decades in a national database that would be accessible to the police and the judicial authorities.

6. On 23 April 2007 the applicant was asked to submit to the taking of his fingerprints and a digital photograph. He refused to do so, firstly, because he had already given these data when he was admitted to the penal institution and, secondly, because he opposed the fact that his data would be stored in a national database for an unknown period of time and that they would be accessible to the police and the judicial authorities.

7. Because of the applicant ’ s refusal to cooperate, the Unit Director of the penal institution imposed on the applicant three days ’ solitary confinement in his own cell which included the removal of his television, starting on 24 April 2007. Later that day, the applicant submitted a complaint against this punishment to the Complaints Commission ( beklagcommissie ) of the penal institution ’ s Supervisory Board ( Commissie van Toezicht ), stating that he had complied with his obligations under Article 28 (2) of the Prisons Act ( Penitentiaire Beginselenwet ) when he had submitted to the taking of his fingerprints and digital photograph during his admittance to the penal institution. He further argued that he was not obliged to submit his data again because they would not be used internally, within the penal institution, but for a national database for which there was no legal basis in the Prisons Act or any other act.

8. On 25 July 2007 the Unit Director sanctioned the applicant a second time and the institution ’ s staff members threatened to report the applicant to the Public Prosecution Service for refusal to comply with an official order if he continued to refuse to provide his fingerprints and digital photograph. Following this threat, the applicant cooperated and submitted his data. He was, neither then, nor after his release, given any information on the way his data would be stored or used.

9. On 24 June 2008 the Complaints Commission of the penal institution ’ s Supervisory Board rejected the applicant ’ s complaint . It held that because the Governor had been obliged to comply with the instructions of the Correctional Institutions Agency, since the refusal of a prisoner to comply with an order of the Governor was a disciplinary offence, and as the applicant had refused to submit his data when ordered to do so by the Governor, the sanction had not been unreasonable.

10. In the applicant ’ s appeal to the Appeals Board of the Central Council for the Administration of Criminal Justice ( beroepscommissie van de Centrale Raad voor Strafrechtstoepassing ) he largely restated his arguments. He further submitted that the fact that the existence of a Bill on the determination of the identity of suspects, convicted persons and witnesses ( Wetsvoorstel Wet identiteitsvaststelling verdachten , veroordeelden en getuigen ), which provided a legal basis for the taking and processing of prisoners ’ biometric data in a national database, proved that section 28 (2) of the Prisons Act did not yet confer any such power.

11. On 3 December 2008 the Appeals Board noted that in practice the identity of prisoners was checked at the time of admission to the institution. It further noted that on entering the institution the applicant had complied with this obligation to submit identifying data as provided for in section 28 (2) of the Prisons Act. It held that, even though the collection of the data itself had not been unlawful, it had been up to the Governor to explain to the applicant why his data had been taken a second time and to provide him afterwards with another opportunity to submit his data. As the Governor had failed to do so, the Appeals Board held that the sanction had been unreasonable. The Appeals Board awarded the applicant financial compensation in an amount of 22.50 euros (EUR).

12. The applicant was released on an unknown date. He understands that his biometric data are still kept.

B. Relevant domestic law

1. The Prisons Act

(a) Legislation

13. Chapter VI of the Prisons Act, first published in the Official Gazette ( Staatscourant ) 1998, no. 430 and renewed in 2009, as in force at the relevant time, in its relevant part read as follows:

“ Section 28

1. The Governor can oblige the prisoner to carry a valid identity document and to show this at the request of a public servant or a staff member.

2. The prisoner is obliged to cooperate with the recording of his digital photograph, the taking of a fingerprint or the taking of a hand scan.”

(b) Parliamentary documents

14. The following is taken from the drafting history of the Prisons Act (Explanatory Memorandum ( Memorie van Toelichting ), Lower House of Parliament, no. 24,263, 1994-95 session, no. 3):

“ ...

Chapter VI of the Bill specifies permissible interferences with the constitutional rights of respect for one ’ s privacy and for the integrity of the body, the clothing and of the prisoner ’ s bodily secretion.

...

The following powers are granted to the Governor to exercise control over the prisoners and the use of force against them:

a. to impose a duty to provide proof of identity;

...

a. Duty to provide identity

The duty to provide proof of identity is copied from section 27 of the Prison Rules ( Gevangenismaatregel ) with the addition of the [prisoner ’ s] explicit duty to cooperate with the recording of his likeness, or the taking of a fingerprint for the purpose of an identity check.”

2. The Bill on the determination of the identity of suspects, convicted persons and witnesses

(a) Legislation

15. The Bill on the determination of the identity of suspects, convicted persons and witnesses of 24 April 2008 (Lower House of Parliament, no. 31,436, 2007-08 session, no. 2) proposed to change section 28 of the Prisons Act as follows:

“ Section 28

1. The Governor shall determine the identity of the prisoner during his admittance to and his departure from the institution, for the implementation of an order within the meaning of section 2 subsection 1, opening words, of the DNA Testing (Convicted Persons) Act ( Wet DNA- onderzoek bij veroordeelden ) and otherwise as necessary.

...

4. The determination of the identity of the prisoner in situations other than his first admittance to the institution shall include the taking of one or more fingerprints and the comparison of those fingerprints with the fingerprints taken from him during his admittance. For the implementation of an order within the meaning of section 2 subsection 1, opening words, of the DNA Testing (Convicted Persons) Act one or more fingerprints will also be taken and processed in accordance with the Code of Criminal Procedure.

5. The Governor is authorised to take one or more pictures of the prisoner. The pictures can be used for the production of an identity document and for the prevention, the investigation and the trial of criminal offences. The prisoner is obliged to carry his identity card with him and to show it when an official or a staff member requires him to do so.

6. By or pursuant to an order in council, rules may be laid down with respect to the processing of the personal data within the meaning of subsections 3 up to and including subsection 5.”

16. The Bill, including section 28 of the Prisons Act as cited above, was adopted on 18 July 2009. The Act on the determination of the identity of suspects, convicted persons and witnesses, entered into force on 1 October 2010 ( Official Gazette 2010, no. 152) .

(b) Parliamentary documents

17. The following is taken from the drafting history of the Act on the determination of the identity of suspects, convicted persons and witnesses (Explanatory Memorandum, Lower House of Parliament, no. 31,436, 2007 ‑ 08 session, no. 3):

“ ...

§ 6.2 Widening of the use of pictures and fingerprints for the determination of the identity of suspects and convicted persons

...

The proposed section 55 (c), subsection 4 of the Code of Criminal Procedure provides for the power of the use of the pictures and fingerprints, which are taken under the new rules for the identification of a suspect or a convicted person, for investigation and prosecution purposes.

... ”

3. Determination of the Identity of Suspects and Convicted Persons Decree ( Besluit identiteitsvaststelling verdachten en veroordeelden )

18. The Determination of the Identity of Suspects and Convicted Persons Decree was first published in the Official Gazette 2009, no. 352, and also entered into force on 1 October 2010 (Official Gazette 2010, no. 152). The Decree sets out, inter alia , the databases in which the pictures and fingerprints of convicted persons are kept as well as the duration of the storage of those data.

COMPLAINT

19. The applicant complains that the obligation to cooperate with the taking of his fingerprints and his digital photograph and the storage of those data in a national database violated his rights under Article 8 of the Convention, as this interference was neither in accordance with the law nor necessary in a democratic society.

QUESTIONS TO THE PARTIES

Factual questions to the respondent Government:

1 . Were the applicant ’ s biometric data (his fingerprints and digital photograph) taken upon his first admittance to the penal institution?

2. If so, where are these data kept?

3 . Where are the applicant ’ s biometric data taken on 25 July 2007 kept?

4 . Did it happen in other cases that a repeat identity check that included the taking of biometric data was carried out?

5 . Prior to the entry into force of the Act on the determination of the identity of suspects, convicted persons and witnesses ( Wet identiteitsvaststelling verdachten , veroordeelden en getuigen ), what would be done with a prisoner ’ s biometric data following his release?

Question under Article 34 of the Convention

6 . May the applicant still claim to be a victim of a violation of the Convention, within the meaning of Article 34 of the Convention after the judgment of the Appeals Board of the Central Council for the Administration of Criminal Justice?

Questions under Article 8 of the Convention

7 . What was the legal basis

(a) for the taking of the applicant ’ s biometric data?

(b) for the storing of the applicant ’ s biometric data?

8 . Does the applicable legislation provide adequate safeguards against abuse?

9 . Has there been a violation of Article 8 of the Convention as regards

(a) the taking of the applicant ’ s biometric data?

(b) the storing of the applicant ’ s biometric data?