Information Note on the Court’s case-law 208

June 2017

Aycaguer v. France - 8806/12

Judgment 22.6.2017 [Section V]

Article 8

Article 8-1

Respect for private life

Fixed period for retention of DNA samples of convicted offenders irrespective of gravity of offence and with no possibility of seeking their destruction: violation

Facts – In 2008 the applicant was sentenced to two months’ imprisonment, suspended, for having struck gendarmes with an umbrella during a farmers’ trade union demonstration. The applicant was subsequently ordered to undergo biological testing with a view to registration in the national computerised DNA database (FNAEG) for persons convicted of specific offences (listed in legislation), the applicant refused to undergo the testing. He was not registered in the database but was fined EUR 500 for his refusal.

Law – Article 8: Where a particularly important aspect of someone’s life or identity is in issue, the State’s margin of appreciation is generally restricted.

Personal data protection plays a primordial role in the exercise of a person’s right to respect for his private life enshrined in Article 8 of the Convention. Domestic legislation must therefore ensure that the appropriate safeguards are in place.

The considerations set out below led the Court to conclude that in the absence of a fair balance between the competing public and private interests involved in the case, the respondent State ha d overstepped its margin of appreciation and that the interference with the applicant’s right to respect for his private life had been disproportionate.

a) Duration of data storage – In 2010 the French Constitutional Council declared constitutional the le gislative provisions on the impugned database, subject to “ensuring that the duration of storage of such personal data remained proportional, in the light of the purpose of the database, to the nature and/or the seriousness of the offences in question”. No appropriate action has so far been taken on that reservation.

According to the Code of Criminal Procedure, the duration of storage of DNA profiles cannot exceed “forty years” in the case of persons convicted of one of the listed offences. That maximum period ought to have been established by decree. The absence of a decree means that the forty-year period is no longer a mere maximum but, in practice, the norm.

At present, therefore, the duration of storage is not differentiated according to the nature and seriousness of the offence committed. However, a wide range of different situations is likely to fall within the scope of the database in question, potentially covering extremely serious offences (e.g. sex offences, terrorism, crimes against humanity and trafficking in human beings).

The present case (concerning unide ntified gendarmes who were struck with an umbrella in the context of a political and trade union activity) is obviously different from those relating specifically to such serious offences as organised crime and sexual attacks.

b) Deletion procedure – Acce ss to such a procedure is only authorised for suspects, not for convicted persons (such as the applicant). The Court, however, took the view that convicted persons too should be allowed to submit a request for the deletion of stored data.

Conclusion : violation (unanimous).

Article 41: EUR 3,000 in respect of non-pecuniary damage.

(See also the Factsheet on Protection of personal data )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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