Article 7 - Respect for private and family life
Article 8 - Protection of personal data
Key facts of the case:
A third country national was detained and the military police wanted to check her identity to find out whether she was entitled to stay in the Netherlands. The woman refused, but face recognition was used to decode the phone and investigate it. As there are many private data on the phone nowadays, the woman argued that this was worse than an investigation of clothing or the body. Her right to respect for private life and the right to protection of personal data were infringed. The Secretary of State said that a phone could be investigated by hand by a civil servant, as it was a mere object, as stated in the Aliens Act 2000. The Secretary of State considered that here was no protection given by the General Data Protection Regulation, as there were no automated means involved, such as the use of special software. The Council of State did not agree. It held that when the relevant article in the Aliens Act came into force (2012) mobile phones contained much less private information and that the use of face recognition and the working of the phone as such implied the use of automation. The right to private life and protection of private data was therefore breached and the investigation of the phone without permission was unlawful. This did not mean that it could never take place, but reasons should be given, which had not been the case. The procedures of the military police did not require this either. The legislation should be clarified in the field of the investigation of mobile phones, giving more details, and the military police should be required to give reasons for an investigation without permission. The Secretary of State has to pay € 3,800.00 to the third country national, who had been released at an earlier date.
Key legal question raised by the Court:
The main question is whether a mobile phone may be investigated by the military police without permission of the owner, a third country national. Is the right to private life and to the protection of personal data infringed?
Outcome of the case:
The Council of State held that there is so much private information on a mobile phone these days, that an investigation of a mobile phone without permission may not take place without specific safeguards, which the legislation does not provide. Even if there are good reasons for such an investigation, they are not given by the military police at the moment, whereas this should be the case. The implication of this case is that the third country national (who had already been released) receives compensation and that the legislator has to amend the legislation. The military police should review their procedures.
2.1. The third country national argues in her only complaint, explained in her written answers to the questions of the Administrative Jurisdiction Division of the Council of State, that the power given by Article 59, paragraph 8, of the Aliens Act 2000, does not mean that the Secretary of State may make use of face recognition in order to decode and investigate her mobile phone. She also does not agree that decoding and investigating a mobile phone does not go further than investigating one’s clothing or the body. Much privately sensitive information is stored on modern mobile telephones. It is true that the legislator gave the Secretary of State far-reaching powers to investigate the nationality and identity on the basis of Article 59, paragraph 8 of the Aliens Act 2000, but other privacy sensitive data will inevitably be found too, when a telephone is investigated without permission. This exceeds the aim of the investigation. According to the third country national Article 59, paragraph 8 of the Aliens Act 2000 does not justify the limitation of the right to respect for private lif (hiereinafter: right to private life) and to the protection of personal data (Articles 7 and 8 of the EU Charter) implied by the investigation of her telephone.
(...)
5. (...) On the basis of Article 7 of the EU Charter everyone has, among other things, a right to respect for their private lif and communications and, according to Article 8 of the Charter, also a right to the protection of their personal data. The aim of the General Data Protection Regulation is, according to Article 1, to protect these fundamental rights of natural persons.
According to the Explanatory Notes to the EU Charter the rights laid down in Article 7 of the EU Charter correspond to the rights which are safeguarded in Article 8 of the ECHR and they have the same contents and scope according to Article 52, paragraph 3 of the Charter. According to the same Explanatory Notes Article 8 of the EU Charter is based on Article 8 of the ECHR.
It follows from the Preamble of the EU Charter that this Charter confirms the rights which are implied by the ECHR and the case law of the EctHR. It follows from the EctHR case of 27 June 2017, Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland, ECLI:CE:ECHR:2017:0627JUD000093113, paragraph 137, that the right to protection of personal data is also part of the right to private life. Investigating a mobile phone without permission is an infringement of that right, as the interpretation of Article 8 of the ECHR shows. The Administratieve Jurisdiction Division of the Council of State refers to the EctHR case of 17 December 2020, Saber v Noorwegen, ECLI:CE:ECHR:2020:1217JUD000045918, paragraph 48.
2.1.The third country national argues in her only complaint, explained in her written answers to the questions of the Administrative Jurisdiction Division of the Council of State, that the power given by Article 59, paragraph 8, of the Aliens Act 2000, does not mean that the Secretary of State may make use of face recognition in order to decode and investigate her mobile phone. She also does not agree that decoding and investigating a mobile phone does not go further than investigating one’s clothing or the body. Much privately sensitive information is stored on modern mobile telephones. It is true that the legislator gave the Secretary of State far-reaching powers to investigate the nationality and identity on the basis of Article 59, paragraph 8 of the Aliens Act 2000, but other privacy sensitive data will inevitably be found too, when a telephone is investigated without permission. This exceeds the aim of the investigation. According to the third country national Article 59, paragraph 8 of the Aliens Act 2000 does not justify the limitation of the right to respect for private lif (hiereinafter: right to private life) and to the protection of personal data (Articles 7 and 8 of the EU Charter) implied by the investigation of her telephone.