Authored By: Helfrida Miftakhur Raifa Sogara
Diponegoro University
Introduction
The right to privacy is one of the fundamental human rights as mentioned in the Universal Declaration on Human Rights (‘UDHR’) Although the right is not absolute, the instruments requires an interference with the right to privacy to be provided by law and necessary and proportional for legitimate reasons. This article will focus on the European Union legal framework on the right to privacy, which is the European Convention on Human Rights (‘ECHR’), to assess the test of necessity and proportionality on the interference with the right to private life under Article 8 of the ECHR. The assessment will be conducted by analysing the case of S. and Marper v. The United Kingdom, which was adjudicated before the European Court on Human Rights (‘ECtHR’) and the judgment was delivered on 4 December 2008.
Parties Involved
The case of S. and Marper v. The United Kingdom involved parties Mr. S, who is the first applicant, and Mr. Michael Marper, the second applicant, vis-à-vis the United Kingdom as the respondent.
The first applicant, Mr. S., was born in 1989, while the second applicant, Mr. Michael Marper, was born in 1963. Mr. S. was arrested on 19 January 2001 at the age of 11 and charged with attempted robbery, and his fingerprints and DNA samples were taken. He was acquitted on 14 June 2001.1
The second applicant, Mr. Michael Marper, was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken too. Before a pre trial review took place, he and his partner had reconciled, and the charge was not pressed. On 11 June 2001, the Crown Prosecution Service served a notice of discontinuance on the applicant’s solicitors, and on 14 June 2001, the case was formally discontinued.2
The United Kingdom, as the government, was asked to destroy the applicants’ fingerprints and DNA, however, in both cases, the police refused.3
Facts of the Case
The dispute began when the police refused to destroy the fingerprints and DNA of both applicants. Under the United Kingdom’s law at the time, the police had the right to indefinitely retain the fingerprints and DNA of anyone arrested for a “recordable” offense, regardless of whether they were convicted. After the rejection, the applicants applied for judicial review of the police decisions not to destroy the fingerprint and samples. However, on 22 March 2002, the Administrative Court rejected the application. Submitting an appeal, the applicants again got rejection from the Court of Appeal, where it upheld the decision of the Administrative Court, declaring the necessity of retaining DNA samples. The Court of Appeal stipulated that fingerprints and DNA profiles reveal only limited personal information. It also mentioned that the aim, which was to identify a perpetrator, could not be achieved without retaining the samples of the fingerprints and DNA. The applicants then submitted this case to the ECtHR on 16 August 2004, arguing that the indefinite retention of their personal data violated their right to private life under Article 8 of the ECHR.
Issues Raised
The questions that arise are whether the retention of both applicants’ fingerprints and DNA, even after the acquittal of both, may be considered as necessary and proportionate to achieve the legitimate aims.
Arguments of the Parties
Here are the submissions of both parties:
- Mr. S. and Mr. Marper
The applicants argued that the indefinite retention of their biometric data was a disproportionate and unjustified interference with the right to private life under Article 8 of the ECHR. They also claimed that the policy to indefinitely retain data was discriminatory because it treated them as unconvicted individuals, in the same way as convicted criminals.
- The United Kingdom
The United Kingdom provides that the indefinite retention of data was conducted to pursue a legitimate aim, which is to prevent and detect crime. They also presented evidence that the DNA database had been highly effective in solving a significant number of crimes.
Judgment
The ECtHR concluded that there was a violation of Article 8 of the ECHR as the retention of the applicants’ fingerprints, cellular samples, and DNA profiles was not necessary and proportionate to achieve the legitimate aims.
Ratio Decidendi
The ECtHR divided its assessment into 3 points; (1) in accordance with the law, (2) legitimate aim, and (3) necessary in a democratic society.
- In accordance with the law
For an interference to be considered as in accordance with the law, the ECtHR has to assess the quality of the law itself. It is mentioned that the law must be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual to regulate his conduct. Other than that, the domestic law must afford adequate legal protection against arbitrariness and indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise.4 As the legal basis for the interference, the government uses section 64 of Police and Criminal Evidence Act 1984 (‘PACE’), which provides that the fingerprints or samples taken from a person in connection with the investigation of an offence may be retained after they have fulfilled the purposes for which they were taken. However, at this point, the ECtHR does not find it necessary to decide whether the wording of section 64 meets the quality of law requirements within the meaning of Article 8 (2) of the Convention. In conclusion, the ECtHR agreed with the government of the United Kingdom that the retention of the applicant’s fingerprint and DNA records had a clear basis in the domestic law.
- Legitimate aim
The ECtHR position here inline with the United Kingdom where the retention of fingerprint and DNA information pursues the legitimate purpose of the detection and prevention of crime.
- Necessary in a democratic society
There is no consensus at the European level regarding how necessary in a democratic society is defined. However, the ECtHR in the Sunday Times case mentioned an extraordinary definition that the interference under Article 8 of the ECHR complained of corresponded to a “pressing social need”, whether it was “proportionate to the legitimate aim pursued”, and whether the reasons given by the national authorities to justify it are “relevant and sufficient.”.
Pressing social need
The ECtHR stressed that to be considered as necessary in a democratic society to achieve legitimate aims, it has to answer a “pressing social need”. The burden to prove whether there exists a pressing social need relies on the respondent State.5 States within the European Union are given a wide margin of appreciation that has to be accorded to the competent national authorities. The margin of appreciation will also vary, depending on the nature of the issues and the seriousness of the interests at stake. However, the ECtHR stated that the margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment or key rights.6 Retention of sensitive data such as fingerprint and DNA is justifiable under Article 8 of the ECHR for criminal investigation and identification. So, there exists a pressing social need to retain the data. However, in the case of a suspected but not convicted person, indefinitely retaining his data would not answer the pressing social need, as it still can be achieved by limiting the period of data retention.
Proportionate to the legitimate aim pursued
The core principles of data protection require the retention of data to be proportionate in relation to the purpose of collection and insist on limited periods of storage.7 The Contracting States of ECHR mostly remove or destroy DNA databases, samples, and DNA profile either immediately or within a certain limited time after acquittal or discharge. This is to achieve a proper balance with the competing interests of preserving respect for private life. The retention of cellular samples is particularly intrusive, given the wealth of genetic and health information contained therein. The ECtHR stated that the retention of the unconvicted person’s data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society.8In conclusion, the indefinite retention of his data will be a form of disproportionate interference.
The reasons given by the national authorities to justify it are relevant and sufficient
Based on the argument given by the United Kingdom, regarding the statistics of DNA profiles that had been set for destruction were connected to crime-scene stains in many cases, and that the fingerprints and samples had been lawfully taken for the sole reason of identification of offenders in the future, the Court answered it with two considerations. First, the Court accepts that the extension of the database has nonetheless contributed to the detection and prevention of crime. But second, indefinite retention of data may increase the risk of stigmatization, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons.9 Therefore, the United Kingdom has overstepped any acceptable margin of appreciation, and the reasons given by it are not relevant and sufficient to conduct indefinite data retention.
Observations
There are a different and inconsistent law and practice in the Council of Europe member states. At least 20 member States make provision for the taking of DNA information and storing it on a national database or in other forms, which allows the compulsory taking of fingerprints and DNA samples in the context of criminal proceedings. While in some countries like Austria, Belgium, Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Norway, Poland, Spain, and Sweden, the taking of DNA information in the context of criminal proceedings is not systematic but limited to some specific circumstances and/or to more serious crimes. 5 States, which are Belgium, Hungary, Ireland, Italy, and Sweden, require the DNA profiles and cellular samples to be destroyed upon acquittal or the discontinuance of the criminal proceedings. In the United Kingdom, systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued is permitted.
In conclusion, the data retention policy varies, depending on the interests of the states, as they are given a wide margin of appreciation. However, they have to balance the measures with the right of an individual, for example in this case is the right to private life. This case is a landmark decision in assessing the necessity and proportionality of retaining data, which suggests that the government has to treat data of unconvicted and convicted persons differently and provides sufficient safeguards when indefinitely retaining the data to avoid misuse or abuse of information.
Reference(S):
1 S. and Marper v. The United Kingdom, ECtHR, 30562/04, 30566/04, Judgment, (‘S. and Marper v. The United Kingdom’), 2008, para. 10.
2 S. and Marper v. The United Kingdom, para. 11.
3 S. and Marper v. The United Kingdom, para. 12.
4 S. and Marper v. The United Kingdom, para. 95.
5 SPiechowicz v. Polan, ECtHR, 20071/07, Judgment, 2012, para. 212.
6 S. and Marper v. The United Kingdom, para. 102.
7 S. and Marper v. The United Kingdom, para. 107.
8 S. and Marper v. The United Kingdom, para. 124.
9 S. and Marper v. The United Kingdom, para. 122.
