Komentarz w j. angielskim autorstwa Brady Harman do wyroku ETPCz ws. S & Marper v. United Kingdom dotyczącego kwestii przechowywania danych osobowych (w tym przypadku odcisków palców i danych z kodu DNA). Trybunał uznał takie działanie za naruszenie art. 8 Konwencji (prawo do prywatności).

Enforcement of S & Marper v. United Kingdom

    The final judgment of S & Marper v. UK was issued by the European Court of Human Rights (Court) on December 4th, 2008.  This case concerned two applicants who were arrested in 2001, upon which the government obtained their fingerprints and DNA samples.  Applicant S. was acquitted and Applicant Marper’s case was discontinued. The government denied Applicants’ subsequent requests for their identifying information to be destroyed; the Government retained the cellular samples, fingerprints, and DNA profiles without a time limit.

    The Court unanimously found a violation of Article 8 of the Convention.  The Court noted that cellular samples contain unique genetic codes from which an immense amount of personal information could be extracted, including health and ethnic origin.  This information is sensitive and highly relevant to the person and their family, and its retention interferes with one’s right to a private life.  For crime prevention purposes, there are domestic and international laws, including the 1984 Act and the Council of Europe Convention of 1981, that allow the retention of personal data.  However, the Court states the importance of safeguards to prevent violation of Article 8; any State measures authorizing retention without consent must be carefully scrutinized.  A balance between the potential use of such technology in crime prevention and private-life interests must be found.  In the UK, data was retained irrespective of the gravity of the crime, without a time limit, and there were only limited possibilities of to have it removed or destroyed.  The Court was concerned by the possibility of stigmatization, as those suspected but acquitted were no longer treated as an innocent, but rather, their data was maintained in the same database as convicted criminals; the Court was especially concerned for the young Applicant and his development and integration into society when stigmatized in this way. 

“The Court found that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences … failed to strike a fair balance between the competing public and private interests, and that the respondent State had overstepped any acceptable margin of appreciation in this regard.  Accordingly, the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society.” 1)

    The Court ordered the payment of court costs to the applicants and found that the holding itself constitutes sufficient just satisfaction.  No general measures were explicitly listed in the judgment, but, rather, the Court expectations for systemic changes can be found throughout the reasoning.  The Court also cites Article 46, stating, “it will be for the respondent State to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to fulfill its obligations to secure the right of the applicants and other persons in their position to respect for their private life.” 2)

    The United Kingdom is at the forefront of a new trend, initiated by the Interlaken Declaration, to create parliamentary committees that focus on the enforcement and implementation of ECHR judgments.  The Joint Committee on Human Rights (JCHR), in the UK Parliament, has the power to require evidence, examine witnesses, meet at will, and make reports in efforts to implement Court rulings.  The JCHR came to play an important role in holding the Government accountable in the implementation of this judgment.  The first step was for this committee to communicate with and monitor the Government’s approach to the decision.  

    The Government first wished to use secondary legislation under the Policing and Crime Bill to implement the judgment, but this position was criticized by the JCHR.  Subsequently, the Home Secretary announced the Government’s new approach:  DNA profiles of those convicted and not charged would be retained for 6 years (except for children, where it would be 3 years).  This position would be enshrined in clauses of the Crime and Security Bill, introduced in November 2009, which was primary legislation, meaning that it would be considered by both Houses of Parliament.  Meanwhile, before any new laws were in place, the Association of Chief Police Officers wrote to all Chief Constables, telling them to await the full response to the ruling by the Government before changing their procedures.

    On November 24th, 2009, the Human Genetics Commission, a Government committee of independent advisers, provided a report that concluded:  there is insufficient evidence of the benefits of holding DNA profiles; there should be careful consideration of the equality impact of database, as there is potential for discrimination; there needs to be a clear and independent appeals procedure for people not convicted that want their DNA profiles destroyed.  The Committee took this information into account, as well as concerns submitted by civil society.  Concerns of the public were focused on the Government’s approach, especially concerning those convicted of minor offenses and over-representation of minorities.

    In December 2009, the Committee of Ministers (Committee) reviewed the steps taken by the UK to that date.  It applauded the UK’s destruction of DNA profiles of children less than 10 years old, and the fact that time limits on retention were proposed.  However, the Committee had questions about the Government’s solutions to issues concerning the gravity of offenses and requested the Secretariat to clarify such questions with the UK Government.  The Committee also wished for more information about institutions for independent review of individual cases.  The Committee met again in March 2010; at this meeting, they expressed their disapproval of the continuing disputes that had not so far permitted a common understanding between the Government and the Committee.  The Committee also cited the JCHR report, and said it would revisit the case in June.

    The JCHR considered the Government’s proposals in its report on the Crime and Security Bill, concluding that it would likely lead to further breaches of Article 8.  In fairly strong wording, the JCHR accuses the Government of giving priority to the continued operation of the National DNA Database, rather than to remove the incompatibilities with the ECHR.  JCHR concerns echo the Committee, stating that the proposal is disproportionate and arbitrary.  The report also cites the lack of transitional measures, pointing to the continued collection and retention of DNA profiles of suspects.  The Government also failed to publish a timetable for dealing with legacy samples, samples that were still retained in breach of the Court ruling.  It is also interesting to note that the Government blatantly stated that they wished to “push the boundaries” of the judgment, wishing to comply in the narrowest sense possible.  The JCHR considers this approach to be unacceptable and predicts that while the Government waits for another case to determine whether it “pushed” the boundaries or whether it had broken the boundaries of S. & Marper, further violations of individual rights will accrue and further litigation will continue to cost the taxpayers.3)

    In February 2011, a new bill, Protection of Freedoms Bill, was announced by the Government. This bill was meant to limit the scope of the DNA database and comply with the S. & Marper ruling.  In May 2011, the UK Supreme Court ruled that the guidelines allowing indefinite retention of DNA profiles were unlawful.  By May 2012, the Protection of Freedoms Act was passed.  The first part of this act concerns the Regulation of Biometric Data.  This section requires the DNA profiles of those charged with a minor offense to be destroyed upon acquittal or dismissal.  

    The implementation process of the Court ruling in S. & Marper v. UK is a prime example of the complex context through which a judgment must navigate to be enforced systemically.  It took almost four years, the involvement of every branch of the national government, and the involvement of the Committee to ensure proper enforcement of the judgment.