FIFTH SECTIONCASE OF S.V.M. v. UKRAINE(Application no. 40106/15)      JUDGMENT STRASBOURG12 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 CASE1. 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 ASSESSMENTALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION10. 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.

Outcome for Article 8: violation