207.
The Court has recognised on numerous occasions that bulk data holdings
may not be justified. In S and Marper v UK (2009) 48 EHRR 50 the Grand
Chamber held that the collection and retention of DNA and fingerprints of
innocent people was contrary to Article 8. In particular, the Grand
Chamber was “struck by the blanket and indiscriminate nature of the
power of retention in England and Wales”, noting that “[t]he material may
be retained irrespective of the nature or gravity of the offence with which
the individual was originally suspected or of the age of the suspected
offender; fingerprints and samples may be taken—and retained—from a
person of any age, arrested in connection with a recordable offence, which
includes minor or non-imprisonable offences” (§119). It further noted that
retention was “not time limited; the material is retained indefinitely
whatever the nature or seriousness of the offence of which the person was
suspected” and a lack of safeguards to ensure that material was deleted
“according to defined criteria, including such factors as the seriousness of
the offence, previous arrests, the strength of the suspicion against the
person and any other special circumstances” (§119).
208.
The Grand Chamber concluded that “the blanket and indiscriminate
nature of the powers of retention…fails to strike a fair balance between the
competing public and private interests” (§125). It held that the UK had
“overstepped any acceptable margin of appreciation in this regard” even
though the DNA database was undoubtedly a valuable tool for detecting
and prosecuting serious criminals (§125).
209.
Similarly, in MK v France, App No. 19522/09, 18 April 2013, the Court
held that the French national digital fingerprint database was unlawful.
In doing so, it rejected the arguments of the French court that “retaining
the fingerprints was in the interests of the investigating authorities, as it
provided them with a database comprising as full a set of references as
possible.” (§13). The Court also noted that the need for safeguards “is all
the greater where the protection of personal data undergoing automatic
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