Information Note on the Court’s case-law No. 125
December 2009
Gardel v. France - 16428/05
Judgment 17.12.2009 [Section V]
Article 7
Article 7-1
Nulla poena sine lege
Registration on national sex-offenders register for a period of thirty years running from date of completion of prison sentence: inadmissible
Article 8
Article 8-1
Respect for private life
Registration on national sex-offenders register for a period of thirty years running from date of completion of prison sentence: violation
Facts – The applicant was in prison, having been sentenced in 2003 to life imprisonment for the rape of fifteen-year-old minors by a person in a position of authority. The law of 9 March 2004 (Law no. 2004-204), adapting the judicial system to developments in criminality, created an automated national judicial database of sex offenders. The provisions of the Code of Criminal Procedure concerning this database entered into force in June 2005. In November 2005 the applicant was informed that he had been included in the database on account of his convictions.
Law – Article 7: Following the entry into force of the 2004 Law the applicant was included in the database of sex offenders, that is, after his conviction. This measure required the applicant to provide information on his address and inform the authorities of any change. The applicant’s inclusion in the database resulted from his conviction in October 2003, since the database automatically concerned individuals who had been sentenced to more than five years’ imprisonment for a sexual offence. With regard to the purpose and nature of the disputed measure, the Court considered that the main aim of the obligation imposed on the applicant was to prevent recidivism. In this connection, the fact that the police services and judicial authorities would know the addresses of convicted persons as a result of their inclusion in the database entailed an element of dissuasion and was likely to facilitate police investigations. The obligation arising from registration in the database thus pursued a preventive and dissuasive aim and could not be regarded as punitive in nature or as constituting a criminal penalty. In addition, while the applicant faced a two-year prison sentence and a fine of EUR 30,000 in the event of failure to comply with the obligation, another set of proceedings, totally independent from those which had led to his conviction in October 2003, would have to be brought in such a case, during which the competent court would be able to assess whether the failure had been unlawful. Finally, with regard to the severity of the impugned measure, this was not in itself a decisive element and, in any event, the obligation to provide information on one’s address every six months and to notify any change within fifteen days, albeit for a period of thirty years, was not serious enough for it to be treated as a penalty. Thus, registration in the database of sex offenders and the resulting obligation were to be regarded as a preventive measure to which the principle of non-retroactivity set out in Article 7 did not apply.
Conclusion: inadmissible (incompatible ratione materiae).
Article 8: The impugned interference was provided for by law and pursued the legitimate aims of protection of public order and the prevention of crime. The Court could not call into question the prevention-related objectives of the database such as that in which the applicant was registered. Sexual offences were clearly a particularly reprehensible form of criminal activity which had debilitating effects on their victims. Children and other vulnerable people had the right to be protected by the State, in the form of effective protection from such serious forms of interference in essential aspects of their private life. At the same time, crime policies in Europe were developing and, alongside punishment, attached growing importance to the aim of prisoner reinsertion, especially towards the end of a long prison term. Successful reinsertion assumed, among other things, the prevention of recidivism. The applicant had been automatically included in the database under the transitional provisions of the 2004 Law, as a result of the crime of which he had been definitively convicted. He had been duly notified of the registration and informed of his obligations. With regard to the requirements to provide information on his address and any changes to it, on pain of imprisonment and a fine, the Court had already found that this did not raise a problem under Article 8. The length of the data conservation was twenty or thirty years depending on the seriousness of the conviction. Although in the instant case this length was considerable, namely thirty years, the data was automatically subject to deletion once that time-limit, calculated from the date on which the decision that had resulted in inclusion ceased to have full effect, had expired. The individual concerned could submit a request for deletion to the public prosecutor from that date. An appeal lay against the prosecutor’s decision. Those judicial proceedings thus ensured independent supervision of the reasons for conserving the data on the basis of specific criteria, and offered sufficient and adequate guarantees of respect for private life in relation to the seriousness of the offences justifying the initial inclusion. In those circumstances, the length of the data conservation was not disproportionate in relation to the aim pursued by retention of the information. As to the arrangements for use of the database and the range of public authorities with access to it, the latter had been extended on several occasions and was no longer limited to the judicial authorities and the police; administrative bodies now also had access. The right to consult the database was restricted to authorities that were under a duty of confidentiality and to precisely determined circumstances. In addition, the instant case did not lend itself to an examination in concreto of the issue of making consultation of the database possible for administrative purposes. In conclusion, inclusion in the database of sex offenders, as it had been applied in this case, had struck a fair balance between the competing private and public interests at stake, and the respondent State had not exceeded the acceptable margin of appreciation in this area.
Conclusion: no violation (unanimously).
(See also the judgments of the same date B.B. v. France, no. 5335/06, and M.B. v. France, no. 22115/06, and the decision of 24 November 2009 Hautin v. France, no. 6930/06, which concern like complaints)
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This summary by the Registry does not bind the Court.
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