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On September 28th 2005, Mr. M.K was arrested in a theft investigation. During his police custody, he was fingerprinted and photographed. At an unspecified date, his personal data was stored on the police database FAED along with his name, his father’s name, his mother’s name, his date and place of birth, and the offence investigated (art.4 of executive order 87-249).
On February 2nd 2006, the prosecutor of the district of Paris decided not to charge the applicant. On May 31st 2006, the prosecutor rejected the applicant’s request to have his private data deleted from the police database FAED (art.7-1 of executive order 87-249). On August 26th 2006, a judge of the tribunal of Paris ruled without any hearing that the private data of the applicant should be kept on the police database FAED. On December 21st 2006, a senior judge of the appeal court of Paris ruled without any hearing that the private data of the applicant shouldn’t be deleted on the ground that he was a suspect in an investigation, and that the decision not to charge him was not a ground for deletion.
On October 1st 2008, the French supreme court (Cour de cassation) rejected his appeal (07-87231).
On February 28th 2009, Mr. M.K filed an application with the ECHR on the ground that the refusal to delete his private data from the police database FAED is a violation of article 8 of the Convention. He added that the absence of hearings on the matter and the non adversarial procedure are violations of article 6-1.
On March 8th 2011, the application was communicated to the agent of the French Republic. On April 18th 2013, the 5th section of the ECHR found a violation of article 8 of the Convention on the ground that the storage of the private data of an innocent citizen on the police database for 25 years wasn’t “necessary in a democratic society“(45-46). It added that the judicial process to have the private data deleted was a “deceptive guarantee” (44). The 5th section also ruled the allegations of violation of article 6-1 to be inadmissible.
The applicant was represented by Me Christophe Meyer (Strasbourg).
At an unspecified date in 1999, the prosecutor of the district of Zürich interrogated several agents of the embassy of the Democratic People’s Republic of Korea (DPR Korea) in Zürich. Mr. Meier and his lawyer were present during the questionings.
On February 3rd 2004, the applicant was charged with defrauding the embassy of DPR Korea. On October 7th 2004, he was condemned by the tribunal of Zürich to 27 months in jail. His conviction was based on the statements of the staff of the embassy to the prosecutor. These prosecution witnesses were absent at the hearing of the tribunal of Zürich.
On November 25th 2005, the superior court confirmed the conviction and the sentence. The prosecution witnesses were also absent at the hearing of the superior court. On January 30th 2007, the supreme court of the district of Zürich dismissed his appeal. On September 3rd 2007, his appeal (6B 51/2007) was rejected by the Swiss supreme court (Federal Tribunal) .
On February 28th 2008, he filed an application to the European Court of Human Rights arguing that to admit testimonies of Korean embassy staff is a violation of article 6-1 of the Convention. He argued that the testimonies of the agents, who enjoy diplomatic immunity (art.31-1 of the Vienna Convention on Diplomatic Relations) were inadmissible because these agents couldn’t be prosecuted for false testimony (art.307 of the penal code).
On June 18th 2013, the majority of the 2nd section of the Court ruled that his application was inadmissible on the ground that “the Court considers it is not necessary to answer the question of the admissibility of the testimonies of diplomatic agents” (54) absent at both hearings. Surprisingly, the section added that the government of DPR Korea may waive the immunity of its diplomatic agents to be prosecuted for false testimony in Switzerland, “if needed for a fair trial” (61).
The applicant was represented by Me Hugo Camenzind (Switzerland) who didn’t answer our request for comments.
European Court of Human Rights News 