The European Court of Human Rights was established to hear cases involving alleged violations of the 1950 European Convention on Human Rights. The Court sits in Strasbourg, France.
For the last several years, the European Court of Human Rights has been considering the cases of 'S' and Marper v. the United Kingdom (application nos. 30562/04 and 30566/04). On December 4, 2008, the Court issued its “Grand Chamber Judgment” considering the issue of the “retention of fingerprints, cellular samples, and DNA profiles after criminal proceedings were terminated by an acquittal...” The Court held unanimously (17 judges concurring) that there had been a violation of Article 8 ( pertaining to a right of respect for private and family life) of the European Convention on Human Rights.
The decision stems from two separate cases originating in the United Kingdom. In the first case, 'S' was an 11 year old boy, arrested and charged with attempted robbery, who was acquitted five months later. Nonetheless, his DNA sample and fingerprints were taken, profiles were entered into the database, and the samples retained. The second case involves a charge of harassment in which the victim was Marper's partner. Marper and his partner reconciled and the case was dismissed prior to any trial being conducted. Again, however, the litigant's fingerprints and DNA were taken and held. In both cases, requests we remade to have their DNA profiles and fingerprints removed from the databases and their biological samples destroyed. In both cases, those requests were denied.
In its decision, the Court concluded that the retention of both cellular samples and DNA profiles amounted to an interference with the applicants' right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention, concluding that fingerprints, DNA profiles, and cellular samples constituted personal data within the meaning of the Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data.
Recognizing that the practice of such retention was limited to England,Wales, and Northern Ireland, the court was concerned about what it considered to be the “indiscriminate” nature of the retention. It noted that the interests of the individuals concerned and the community as a whole in protecting personal data, including fingerprint and DNA information, could be outweighed by the legitimate interest in the prevention of crime. And it accepted that the retention of fingerprint and DNA information pursued a legitimate purpose, namely the detection, and therefore, prevention of crime. However, it found that the power of retention of the fingerprints, cellular samples, and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, failed to strike a fair balance between the competing public and private interests.