13/02/2020. ECHR. Indefinite detention of DNA, fingerprints and photograph of a man convicted of driving under the influence of alcohol, violated his right to privacy (Article 8 ECHR).

Case: Gaughran v. the United Kingdom (application no. 45245/15): Mr. Gaughran, convicted of driving under the influence of alcohol, years after the incident requested that his personal data be deleted from the records of the competent authority. The latter replied that there was no legal provision authorising the deletion of personal data of convicted persons. The case reached the ECtHR, which ruled that the United Kingdom failed to strike a fair balance between the public and private interests at stake, by not establishing “minimum safeguards”.

– The Court examined whether the interference with the applicant’s privacy rights was justified, reiterating that national authorities should be given room for manoeuvre (“discretion”) when assessing appropriate measures to ensure the public interest. The Court essentially reasoned that there is a strong consensus among Member States on the adequacy of measures involving the retention of data of those convicted of a crime.

– The United Kingdom, within this margin of manoeuvre, “assigned itself the widest power” by providing for indefinite retention. This could be justified as valid, as long as certain safeguards were in place and effective for the data subjects.

– However, the biometric data and photographs of the data subject had been retained without reference to the seriousness of his offence and without taking into account the need to continue retaining those data indefinitely. Furthermore, the Police of Northern Ireland had the power to delete biometric data and photographs only in exceptional circumstances. Therefore, the applicant could not request an examination of the retention of his or her data, as there was no provision for deletion.

– The retention of the data no longer seemed necessary in view of the nature of the offence, the age of the applicant or the time that had elapsed.

– The Tribunal stressed that it was not the duration of data retention that had been decisive, but the absence of safeguards. In the case of the applicant, his personal data had been kept indefinitely without consideration of the seriousness of his crime, the need for indefinite retention and without any real possibility of review.

– The United Kingdom is one of the few Council of Europe jurisdictions which allows for indefinite retention of DNA profiles.

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