ÖZTÜRK v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall
1. The applicant, Mr Fuat Öztürk, is a Turkish national, who was born in 1968 and lives in Rotterdam. He is represented before the Court by Ms J. Serrarens, a lawyer practising in Maastricht. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs. 2. The Government of the Republic of Turkey were informed of their right to take part in the proceedings (Article 36 § 1 of the Convention) but did not express the desire to do so. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In April 2007 the applicant, a convict prisoner who had been in detention since 1999, was transferred to the Penal Institution “Dordtse Poorten” in Dordrecht. 5. By letter of 2 April 2007 the Correctional Institutions Agency of the Ministry of Justice (Dienst Justitiële Inrichtingen van het Ministerie van Justitie) informed the Governor of “Dordtse Poorten” about a project for the taking of prisoners’ biometric data (photographic likenesses and fingerprints), referred to by the name of “Biometrics”, which was prompted by the finding that a number of prisoners in a different institution had assumed a false identity. The project, referred to as a “catch-up exercise” (inhaalslag), was intended to constitute the initial phase of a complete overhaul of the prisoner identification system. As part of this project, the Governor of “Dordtse Poorten” was asked to take biometric data of certain prisoners in his institution. 6. As one of the prisoners chosen, the applicant was informed by letter of the intention of the Governor to take his fingerprints and digital photograph. The letter did not provide information on the storage or use of the data taken. The applicant states that the penal institution’s staff members, when asked, told him that the data would be stored for “decades” in a national database that would be accessible to the police and the judicial authorities. 7. On 23 April 2007 the applicant was asked to submit to the taking of his fingerprints and a digital photograph. He refused to do so, firstly, because he had already given these data when he was admitted to the penal institution and, secondly, because he opposed the fact that his data would be stored in a national database for an unknown length of time and that they would be accessible to the police and the judicial authorities. 8. Because of the applicant’s refusal to cooperate, the Unit Director of the penal institution imposed on the applicant three days’ solitary confinement in his own cell which included the removal of his television, starting on 24 April 2007. Later that day, the applicant submitted a complaint against this punishment to the Complaints Commission (beklagcommissie) of the penal institution’s Supervisory Board (Commissie van Toezicht), stating that he had complied with his obligations under Section 28 (2) of the Prisons Act (Penitentiaire Beginselenwet) when he had submitted to the taking of his fingerprints and digital photograph during his admittance to the penal institution. He further argued that he was not obliged to submit his data again because they would not be used internally, within the penal institution, but for a national database for which there was no legal basis in the Prisons Act or any other act. 9. On 25 July 2007 the Unit Director sanctioned the applicant a second time and the institution’s staff members threatened to report the applicant to the Public Prosecution Service for refusal to comply with an official order if he continued to refuse to provide his fingerprints and digital photograph. Following this threat, the applicant cooperated and submitted his data. He was, neither then, nor after his release, given any information on the way his data would be stored or used. 10. On 24 June 2008 the Complaints Commission of the penal institution’s Supervisory Board rejected the applicant’s complaint. It held that the sanction had not been unreasonable because the Governor had been obliged to comply with the instructions of the Correctional Institutions Agency; because the refusal of a prisoner to comply with an order of the Governor was a disciplinary offence; and because the applicant had refused to submit his data when ordered to do so by the Governor. 11. In his appeal to the Appeals Board (beroepscommissie) of the Council for the Application of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming) the applicant largely restated his arguments. He further submitted that the existence of a Determination of the Identity of Suspects, Convicted Persons and Witnesses Bill (Wetsvoorstel Wet identiteitsvaststelling verdachten, veroordeelden en getuigen), which provided a legal basis for the taking and processing of prisoners’ biometric data in a national database, proved that section 28 (2) of the Prisons Act did not yet confer any such power. 12. On 3 December 2008 the Appeals Board noted that in practice the identity of prisoners was checked at the time of admission to the institution. It further noted that on entering the institution the applicant had complied with this obligation to submit identifying data as provided for in section 28 (2) of the Prisons Act. It held that, even though the collection of the data itself had not been unlawful, it had been up to the Governor to explain to the applicant why his data needed to be taken a second time and to provide him afterwards with another opportunity to submit his data. As the Governor had failed to do so, the Appeals Board held that the sanction had been unreasonable. The Appeals Board awarded the applicant financial compensation in an amount of 22.50 euros (EUR). 13. The applicant was released on 7 September 2009. 14. In their further observations submitted in response to the applicant’s observations, the Government submitted a written statement on paper bearing the letterhead of the Judicial Information Service (Justitiële Informatiedienst) and dated 22 March 2013. It reads as follows: “Destruction The undersigned, J.J. Wiltvank, General Director of the Judicial Information Service, makes the following declaration: It is described in the official record (proces-verbaal) of destruction dated 12 December 2012 (annexed) that the personal information as used during the so-called ‘catch-up exercise’ has been destroyed; Supplementing this official record, the undersigned also declares that: during the period of processing the data were stored in a safe; the data were not used for any other purpose than for checking, once only; the data were compared, during this once-only check, against the HAVANK data [HAVANK, acronym for Het Automatisch Vinger Afdrukkensysteem Nederlandse Kollektie, The Automatic Fingerprint System Netherlands Collection]; as far as the Judicial Information Service are able to observe, these data have not been entered in the HAVANK database. ... I declare this to be a statement of the truth, made on 26 March 2012 [sic]. J.J. Wiltvank General Director of the Judicial Information Service” This document bears no manuscript signature. 15. Also annexed to the Government’s further observations were an official record attesting the destruction of “personal data of the catch-up exercise”, recording the destruction of information stored on CDs and external hard disc drives by Ministry of Justice officials and of the original fingerprints by a waste-processing company, Milieu Service Nederland. The official record includes the following: “Instruction On 21 November 2012 the Director of the Judicial Information Service instructed the undersigned to ensure the destruction of any personal data from the catch-up exercise that might still unjustifiably be stored (de mogelijk nog ten onrechte in bewaring zijnde persoonsgegevens). Stocktaking ... During stocktaking a search was carried out for other media that might exist outside the Judicial Information Service. From the information obtained from the then keeper of the mobile kits it appears that there are no data bearers left there all information was removed from the mobile kits upon transfer to the Judicial Information Service the mobile kits were dismantled a considerable time ago by the supplier HSB. ...” Attached to the official record is a “Destruction and Recycling Certificate” dated 10 December 2012, provided by Milieu Service Nederland. 16. The Prisons Act, as in force at the relevant time, in its relevant part provided as follows: “1. The Governor can oblige the prisoner to carry a valid identity document and to show this at the request of a civil servant or a staff member. 2. The prisoner is obliged to cooperate with the recording of his digital photograph, the taking of a fingerprint or the taking of a hand scan.” “Rules will be laid down by or pursuant to order in council concerning the creation of files. These rules will in any event give a definition of the detainees about whom a file must be created, the nature of the information contained therein, the right of the detainee concerned to inspect or obtain a copy of the file and the limits to this right, and the length of time and way in which the file is to be kept.” “1. A detainee may lodge a complaint with the Complaints Committee against a decision concerning him taken by or on behalf of the Governor. 2. A failure or refusal to give a decision is equated with a decision as referred to in subsection 1. If no decision has been given within the statutory time limit or, in the absence thereof, within a reasonable time limit, this is deemed to be a failure or refusal to give a decision. 3. The Governor must ensure that a detainee wishing to lodge a complaint is given an opportunity to do so as quickly as possible.” 17. The following is taken from the drafting history of the Prisons Act (Explanatory Memorandum (Memorie van Toelichting), Lower House of Parliament, no. 24,263, 1994-95 session, no. 3): “... Chapter VI of the Bill specifies permissible interferences with the constitutional rights of respect for one’s privacy and for the integrity of the body, the clothing and of the prisoner’s bodily secretion. ... The following powers are granted to the Governor to exercise control over the prisoners and the use of force against them: a. to impose a duty to provide proof of identity; ... a. Duty to provide identity The duty to provide proof of identity is copied from section 27 of the [former] Prison Rules (Gevangenismaatregel) with the addition of the [prisoner’s] explicit duty to cooperate with the recording of his likeness, or the taking of a fingerprint for the purpose of an identity check.” 18. The Prison Rules (Penitentiaire maatregel), as in force at the relevant time, in their relevant part provided as follows: “... 2. The other documents relating to the detainee are to be collated in an institutional file [i.e. a file peculiar to the institution]. They are to be arranged by subject in chronological order.” “... 4. The institutional file referred to in article 37, paragraph 2 must be destroyed six months after the detainee’s stay at the institution has ended. If the detainee is again confined in the institution before the end of this period, the limited retention period ceases to apply.” “1. In the event that inspection by the detainee of his file is denied on one of the grounds laid down in section 43 of the Personal Data Protection Act, the Governor may arrange for a member of the Supervisory Committee authorised by the detainee to inspect the data which the detainee has been denied leave to inspect. Sections 57 and 58 of the Act [i.e. the Prisons Act] apply mutatis mutandis. 2. Data from the file may be disclosed to Our Minister and the civil servant or staff designated by him in so far as necessary with a view to: a. dealing with requests concerning the detainee; b. dealing with procedures concerning the detainee; c. managing the files; d. dealing with other decisions concerning the detainee. The same applies to the assignment officer, the Governor and the civil servants or staff designated by them.” 19. The Act on the determination of the identity of suspects, convicted persons and witnesses (Wet identiteitsvaststelling verdachten, veroordeelden en getuigen) entered into force on 1 October 2010. It altered section 28 of the Prisons Act so as to empower the Governor to take a prisoner’s biometric data (fingerprints, DNA, photographic likeness). Delegated legislation is to govern the processing of these data. 20. Article 27b § 4 of the Code of Criminal Procedure (Wetboek van Strafvordering) now provides for data needed to establish the identity of a suspect or convict to be stored in the “criminal procedure database” (strafrechtsketendatabank). 21. Detailed regulation of the criminal procedure database is provided by the Determination of the Identity of Suspects and Convicted Persons Decree (Besluit identiteitsvaststelling verdachten en veroordeelden), which also entered into force on 1 October 2010. This Decree sets rules for the organisation of the database in which biometric data of convicted persons are kept, storage and destruction of those data and access to them.