FOURTH SECTION
DECISION
Application no. 47932/09
Martin FLUSKEY
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on
10 July 2012 as a Chamber composed of:
Lech Garlicki,
President,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 28 August
2009,
Having regard to the observations
submitted by the respondent Government and the observations in reply submitted
by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Martin Fluskey, is an Irish
national, who was born in 1963 and lives in Dublin. He was represented before
the Court by Mr M. Finucane, a lawyer practising in Dublin.
A. The circumstances of the case
The applicant was convicted in 1989 of
fraudulently using a licence. He received a fine.
On 22 August 2005 the applicant was arrested and
detained at Stoke Newington Police Station on suspicion of harassment contrary
to section 5 of the Public Order Act 1986 following an incident involving his
former wife. Photographs, fingerprints and a DNA sample were taken. The
applicant received a caution in respect of the incident and was released on the
same day.
In February 2006 the applicant complained to the
Independent Police Complaints Commission about the arrest. His complaint was
investigated and on 13 July 2006 Detective Inspector Smith confirmed that the
arrest was lawful.
In or around September 2006 the applicant’s
solicitors wrote back to Detective Inspector Smith questioning the legality of
the caution and requesting that it be rescinded.
On 8 January 2007 the applicant was advised that
the caution would be removed from his record.
On or around 14 February 2007 the applicant’s
solicitors requested that the police use their discretion to delete the
applicant’s DNA, fingerprints and photographs. On 23 March 2007, he was advised
that his request to have the DNA data destroyed had been refused.
On 24 June 2008 a further request was received by
the police from the applicant for deletion of his DNA, fingerprints and
photographs. The request was treated as having been made under the procedure
allowing deletion of such data in exceptional circumstances. Receipt of the
request was acknowledged on 27 June 2008.
On 29 April 2009, following an examination of the
facts and circumstances relating to the applicant’s arrest, the police decided
to delete the applicant’s DNA, fingerprints and photographs.
On 5 May 2009, the applicant was informed that
his case was considered to be exceptional and that his DNA sample and other
records would be destroyed.
On 20 May 2009 the record of the applicant’s DNA
profile was deleted.
On 29 May 2009 the applicant’s DNA sample and
profile were deleted.
On 19 June 2009 the electronic record of the
applicant’s fingerprints was deleted.
On 22 June 2009 the offence recorded in the
Police National Computer in respect of the applicant was deleted.
On 8 July 2009 the hard copy record of the
applicant’s fingerprints and his Police National Computer record were deleted.
On the same day the applicant was advised that
all his records and samples had been deleted.
B. Relevant domestic law and practice
For details of the relevant domestic law see S.
and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR
2008.
COMPLAINT
The applicant complained about the retention of his DNA,
fingerprint and photograph data and the limited possibilities for deletion of
such data.
THE LAW
The Court must first determine whether the
application is admissible under Article 34 of the Convention. Article 34
provides:
““The Court may receive applications from any person ...
claiming to be the victim of a violation by one of the High Contracting Parties
of the rights set forth in the Convention ....”
The Government argued that the data were
taken lawfully and have subsequently been destroyed in full. In the
circumstances, they considered that the applicant lacked victim status to
complain of a violation of his rights.
The applicant maintained that he remained a
victim of a violation. He argued that the policy for destruction of data in
undefined “exceptional circumstances”, which were not amenable to public
scrutiny or assessment by a public body, did not comply with his Article 8
rights. He argued that he was a victim of a violation for almost four years.
The Court reiterates that in order to claim to
be a victim of a violation, a person must be directly affected by the
impugned measure. The Convention does not, therefore, envisage the bringing of
an actio popularis for the
interpretation of the rights set out therein or permit individuals to complain
about a provision of national law simply because they consider, without having
been directly affected by it, that it may contravene the Convention (see, for
example, Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR
2008).
In the present case, the Court observes that the
applicant’s data were taken on 22 August 2005. Upon the deletion of his caution
in January 2007, the applicant’s request for deletion of his DNA and other data
was refused. However, he repeated this request in June 2008, and it was treated
as a request for deletion in exceptional circumstances pursuant to the policy
followed at the time. The applicant was subsequently advised, on 5 May 2009, that
his data would be deleted. In the course of May, June and July 2009 all DNA,
fingerprint and photographic data relating to the applicant were deleted. He
was advised of their complete deletion on 8 July 2009. However, the applicant
made no complaint to this Court about his DNA data until 6 October 2009, the
date of his application form.
In the light of the above, the Court finds that
by the time the applicant made a complaint to this Court he could no longer
claim to be a victim within the meaning of Article 34 of the Convention of a
violation of those rights.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President
