40106/15

FIFTH SECTION CASE OF S.V.M. v. UKRAINE (Application no. 40106/15)             JUDGMENT   STRASBOURG 12 September 2024   This judgment is final but it may be subject to editorial revision. In the case of S.V.M. v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Lado Chanturia, President,  Stéphanie Mourou-Vikström,  Mykola Gnatovskyy, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 40106/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 August 2015 by a Ukrainian national, S.V.M. (“the applicant”), who was born in 1983, lives in Lviv and was represented by Mr R.B. Topolevskyy, a lawyer practising in Lviv; the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko; the decision not to have the applicant’s name disclosed; the parties’ observations; the decision to reject the Government’s objection to the examination of the application by a Committee; Having deliberated in private on 11 July 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.  The case concerns the allegedly unlawful and unjustified disclosure of information concerning the applicant’s past conviction (судимість) in an extract from the police register (довідка про несудимість). The applicant referred to Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12. 2.  On 20 February 2012 the Lviv regional police authority issued the applicant, at his request, with an extract from the police register, stating as follows: “In accordance with Article 89 of the Criminal Code, [S.V.M.] ... is considered to have no criminal record ...” 3.  The applicant requested that the reference to Article 89 of the Criminal Code (“the CC”), setting out the conditions under which convictions could be expunged from a person’s criminal record, be removed. He stated that he needed the extract in connection with his search for employment and argued that the reference to Article 89 would make it obvious to anyone looking at the extract that he had once been convicted. That would place him at an unfair disadvantage in the job market. 4.  The police authority refused, relying on Order no. 823/188 of 23 August 2002 issued jointly by the Ministry of the Interior and the State Department of Punishments. Section 9.9 of that Order specified, in particular, that extracts from the police register had to be issued “taking into consideration the requirements of Article ... 89 ... of the [CC]”. 5.  The applicant brought proceedings against the police authority, seeking an order obliging the police to amend the extract. He argued that the extract in question contained sensitive information, the disclosure of which, in the context of his employment search, was unnecessary and placed him at an unfair disadvantage compared to individuals who had never been convicted. He further argued that that disclosure breached Article 32 of the Constitution and section 14 of the Data Protection Act (“the DPA” - Закон «Про захист персональних даних»), which allowed disclosure of personal information to third parties without the data subject’s consent only where that disclosure was expressly required by law. He argued that neither section 9.9. nor any other part of Order no. 823/188 contained any provision requiring the disclosure of an expunged conviction. 6.  On 6 July 2012 the Lviv District Administrative Court dismissed the applicant’s complaint, having found, in particular, that the police had acted in compliance with section 9.9 of Order no. 823/188. The court also noted that as the applicant had requested the extract from the police register himself and it had been handed to him personally, the police could not be blamed for disseminating his data to third parties in breach of the DPA or of any other legislative instrument, and that the applicant had no right to request any amendment of the text. That part of the judgment read, in particular: “The law in force ... does not entitle the plaintiff to request that reference to a criminal conviction expunged by virtue of Article 89 of the [CC] be omitted from the [extract from the police register], nor does it oblige the defendant ... to refrain from referring to Article 89 of that Code when preparing an extract ... ” 7.  On 14 May 2015 the Lviv Administrative Court of Appeal dismissed an appeal by the applicant, endorsing the lower court’s findings and reasoning. 8.  On 16 June 2015 the Higher Administrative Court rejected a request by the applicant for leave to appeal on points of law. 9.  On 18 May 2022, in response to an information request from the Government’s Agent, the Ministry of the Interior provided a letter explaining that, since 2012, the applicable regulatory framework had changed. In particular, a new Order of the Ministry (no. 207 of 30 March 2022) now enabled data subjects to request either “full” or “abbreviated” versions of extracts from the police register, depending on the purpose for which they were requested. The Ministry also noted, in particular: “the introduction of two types of [extract] was prompted by the need to differentiate between personal data recorded in the [police register]. ... In some cases, a person needs only to show that he or she has no criminal record; in other cases, it must be established that the person ... has never been convicted ... The disclosure of [excessive] personal information in some cases may not be justified and may not correspond to the established purpose of the processing ... thus jeopardising ... the ... right to [privacy] protected by Article 32 of the Constitution ... as well as the data-processing principles established in [the DPA]. ... ” THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 10.  Relying on Article 8 of the Convention, the applicant argued that the extract from the police register issued to him by the police had arbitrarily and unnecessarily disclosed sensitive information concerning his expunged criminal conviction. 11.  The Government pleaded non-exhaustion of domestic remedies. They argued that it was open to the applicant to appeal against the retention of his conviction in the police register or to bring anti-discrimination proceedings against any potential employer that refused to employ him on the grounds of his past conviction. The Government emphasised that there was no legal basis for distinguishing the applicant’s situation in the context of an employment search from that of persons who had never been convicted. Arguing that the reference to Article 89 of the CC in the extract in question did not amount to an interference with the applicant’s Article 8 rights, they abstained from making any further comment on the merits of the applicant’s complaint. 12.  The Court finds that the applicant duly set out, before the domestic courts, the crux of his complaint, which concerned the particular wording in the extract in question from the police register. It accepts his argument, submitted in response to the Government’s observations, that the remedies suggested by them did not address the essence of his grievance. The Court therefore dismisses the Government’s non-exhaustion objection. It further finds that the present complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds and declares it admissible. 13.  The Court next notes that it was not disputed between the parties that the manner in which the extract from the police register had been formulated made it clear to a reader that the applicant had previously been convicted of a criminal offence. Regard being had to the principles developed in the relevant case-law, the Court finds that disclosure of the applicant’s past conviction in an extract from the police register amounted to the processing of sensitive personal data concerning him and constituted an interference with his right to respect for private life protected by Article 8 of the Convention (see M.M. v. the United Kingdom, no. 24029/07, §§ 187-90 and 195, 13 November 2012, and compare P.T. v. the Republic of Moldova, no. 1122/12, § 28, 26 May 2020). 14.  The Court must therefore determine whether that interference was justified under Article 8 § 2 of the Convention (see, in particular, Surikov v. Ukraine, no. 42788/06, §§ 70-74, 26 January 2017 and, as a recent authority, L.B. v. Hungary [GC], no. 36345/16, § 106, 9 March 2023). 15.  In this connection, the Court must assess, firstly, whether the interference was “lawful” (see Surikov, cited above, §§ 71-72). It notes that in the domestic proceedings the applicant argued that the police had breached Article 32 of the Constitution and section 14 of the DPA, both of which required an individual’s consent for the disclosure of personal information except in cases where such disclosure was expressly required by law. Neither the domestic authorities dealing with that argument at national level, nor the Government in their observations before the Court, cited any legislative instrument which required the police to disclose a past conviction in the circumstances of the applicant’s case. The only regulatory provision referred to by the authorities in this connection – section 9.9 of Order no. 823/188 (see paragraph 4 above) – required the police to issue extracts “taking into consideration the requirements of Article ... 89 ... of the CC”. Even assuming that that Order could qualify as “law” for the purposes of Article 32 of the Constitution and section 14 of the DPA, the Court cannot discern any element indicating that the aforementioned provision, couched in very general terms, required the disclosure of expunged convictions. The Court is therefore unable to conclude that a reference to the applicant’s expunged conviction in the extract in question from the police register had a sufficient basis in the applicable law (compare Radu v. the Republic of Moldova, no. 50073/07, §§ 30-32, 15 April 2014). 16.  Although the above is sufficient for a finding of a violation of Article 8 of the Convention (compare M.M. v. the United Kingdom, cited above, § 207), regard being had to the seriousness of the issue, the Court will proceed to examine the other elements of compliance with Article 8 § 2 of the Convention, that is, the “existence of a legitimate aim” and “necessity in a democratic society” (compare P.T. v. the Republic of Moldova, cited above, § 30). The Court recognises that the retention and processing of information concerning past convictions may, in specific circumstances, pursue various legitimate aims, such as preventing disorder and crime. It may also be necessary, in particular, to protect others (see, in particular, Gardel v. France, no. 16428/05, §§ 59-60 and 71, ECHR 2009). 17.  However, in the present case the Government have remained silent as to the existence of any such legitimate aim or the necessity of the interference complained of. The Court, in turn, notes that the extract requested by the applicant, to be used in connection with his search for employment, was worded in such a way that it disclosed the existence of his previous conviction but did not provide any details that might have been relevant to an employment-related decision-making process, such as the nature, type or date of the offence. From the available material, the Court is unable to discern how the disclosure of that particular information in the requested extracts, which could be required in a variety of situations where the applicant’s expunged conviction was of no apparent relevance, pursued any of the legitimate aims listed in Article 8 § 2, answered any pressing social need or struck a fair balance between the applicant’s rights under Article 8 of the Convention and the interests of any third party in knowing about his past conviction which, in accordance with the requirements of national law, had already been expunged (compare P.T. v. the Republic of Moldova, cited above, §§ 29-32). 18.  It is apparent from the Government’s submissions that after the events giving rise to the present application, the Ministry of the Interior revised the applicable policies. Under Order no. 207, issued in 2022, data subjects now enjoy more flexibility in determining the scope of information included in an extract from the police register, depending on the purpose of their request (see paragraph 9 above). 19.  The Court takes positive note of the Government’s general efforts to enhance the domestic data protection framework in this area. At the same time, it observes that the ensuing reforms had no bearing on the applicant’s personal situation as set out in the present application. 20.  There has, accordingly, been a breach of Article 8 of the Convention in respect of the applicant. OTHER COMPLAINTS 21.  The applicant also relied on Article 14 of the Convention and Article 1 of Protocol No. 12. Regard being had to the reasons for the finding of a violation in respect of the complaint under Article 8 of the Convention, the Court considers that the main legal questions have been addressed and there is no need to examine the present complaints separately (see I. v. the United Kingdom [GC], no. 25680/94, § 88, 11 July 2002; and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 22.  The applicant claimed 3,600 euros (EUR) in respect of pecuniary damage. That sum, which, according to him, corresponded to the average annual salary in Ukraine in 2012, would in his view constitute equitable compensation for the income potentially lost as a result of his difficulties in finding employment. The applicant also claimed EUR 3,500 in respect of non-pecuniary damage. 23.  The Government argued that the applicant’s claims were exorbitant and unsubstantiated. 24.  The Court does not discern a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, ruling on an equitable basis, it awards the applicant EUR 3,500 in respect of non-pecuniary damage as claimed by him, plus any tax chargeable on that amount. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaint raised under Article 8 of the Convention admissible; Holds that there has been a violation of Article 8 of the Convention; Holds that there is no need to examine the admissibility and merits of the complaints under Article 14 of the Convention and Article 1 of Protocol No. 12; Holds (a)  that the respondent State is to pay the applicant, within three months, EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 September 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Martina Keller Lado Chanturia  Deputy Registrar President