CEDH · CASELAW;CLIN;ENG — 18 octobre 2011

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Switzerland - 16188/07 Judgment 18.10.2011 [Section II] Article 8 Article 8-1 Respect for private life Police records describing applicant’s occupation as “prostitute”, despite lack of any conviction for prostitution-related offences: violation   Facts – During a police check in Geneva in 1993, the police found the applicant to be carrying calling cards which read: “Nice, pretty woman, late thirties, would like to meet a man to have a drink together or go out from time to time. Tel. no. ...”. The applicant alleged that, following that discovery, the Geneva police had entered her name in their records as a prostitute, an occupation in which she consistently denied having engaged. In 2003, and again in 2006, the applicant requested that the word “prostitute” be deleted after having learned that it still appeared on the police computer records. The police agreed to her request but refused to delete the word “prostitute” from the data concerning criminal complaints of threatening and insulting behaviour lodged against her in 2001 on the ground that such information had to be kept as a preventive measure. The applicant challenged that decision in the courts but was not successful. Law – Article 8: The word “prostitute” describing the applicant’s profession had been deleted from the police computer system and replaced with “dressmaker”. However, court judgments revealed that the word at issue, cited in connection with various criminal proceedings, had not been deleted. The storage of data concerning the applicant’s private life, including her profession, and the retention thereof, amounted to an interference within the meaning of Article   8, because it was personal data relating to an identified or identifiable individual. That interference had a legal basis in domestic law and was intended to prevent disorder and crime and to protect the rights of others. The word at issue was liable to damage the applicant’s reputation and, as she claimed, make her day-to-day life more problematic, given that the data contained in the police records could be transferred to the authorities. That was all the more significant these days because personal data were subject to automatic processing, thus considerably facilitating access to and the distribution of such data. The applicant therefore had a considerable interest in having the word “prostitute” deleted from the police records. While the Court acknowledged in principle that retaining an individual’s personal data on the ground that that person might commit another offence might be in conformity with the principle of proportionality, it considered that the allegation of unlawful prostitution appeared too vague and general and was not supported by concrete facts. In particular, the link between the applicant’s conviction for threatening and insulting behaviour and retention of the word “prostitute” was not sufficiently close. The Court did not in any way underestimate the importance of effective crime prevention. However, having regard to the foregoing, and in particular, having regard to the fundamental importance of the presumption of innocence in a democratic society, it was not satisfied that retention of the word “prostitute” to describe the profession of the applicant, who had never been convicted of unlawful prostitution within the meaning of the Swiss Criminal Code, could be considered to meet a “pressing social need” within the meaning of Article   8 of the Convention. Neither the domestic authorities nor the Government had claimed that it was difficult or impossible for technical reasons to remove the word at issue from the police files. Taking account of those uncertainties, the contradictory behaviour of the authorities, the principle that it was a matter for those same authorities to prove the accuracy of particular data, the narrow margin of appreciation enjoyed by the domestic authorities in that area and the seriousness of the interference with the applicant's rights under Article   8, retention of the word “prostitute” in the police files for years had not been necessary in a democratic society. Conclusion : violation (unanimously). Article 41: EUR 15,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes