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Council of Europe

Publication date: 
01-Jan-2011

The Council of Europe

The Council of Europe is distinct from the EU. In 1950 the Council of Europe adopted the European Convention on Human Rights, which is currently applicable in all EU member states.1 Article 8 paragraph 1 of the ECHR declares that everyone has the right to respect for his private and family life, his home and his correspondence.2 Paragraph 2 states that the above mentioned right is not absolute in that it may be acceptable for public authorities to limit it when the "interference" is "in accordance with law" and "necessary in a democratic society" in pursuit of one or more of the following legitimate aims: "in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The European Court of Human Rights (ECtHR), based in Strasbourg, is the highest court for the interpretation of the ECHR. It has been clarifying over the years the protective scope of Article 8 of the ECHR, notably in relation with the processing of personal data. The Court has in particular established that the right to respect for private life of Article 8 of the ECHR includes a series of positive obligations for states, which may involve the adoption of measures designed to secure the protection of personal data in the sphere of relations between individuals.3 In many judgments, the Court explicitly or implicitly refers to data protection principles.4

Following the advancements of information technologies, the Council of Europe issued a separate Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data in 1981 (known as "Convention No. 108").5 Parties to this Convention, which include all EU member states, are required to implement it into their national laws. Convention No. 108 is open to any countries that have enacted legislation "in accordance with" the standards it establishes; and it was amended in 1999 making it possible for the EU to accede to it.6 In 2001 was adopted an additional Protocol regarding supervisory authorities and transborder data flows, that entered into force in 2004.7 Furthermore, Convention No. 108 is complemented by a series of Recommendations,8 such as the Recommendation Regulating the use of Personal Data in the Police Sector.9

Recently, the Consultative Committee of the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data has been actively working on the issue of profiling. It adopted in June 2010 a Draft Recommendation on the subject.10 Additionally, it has launched a process of analysis of Convention No. 108 and is expected to start discussing its possible revision in the near future.

 

Footnotes

  • 1. See http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CM=8&D....
  • 2. Id.
  • 3. ECtHR, Appl. No. 20511/03, 17 July 2008, I. v. Finland, Judgment, §§ 36-38.
  • 4. See, for example, ECtHR, Appl. No. 9248/81, 26 March 1987, Leander v Sweden, Judgment, § 48; ECtHR GCh, Appl. No. 14310/8828, 28 October 1994, Murray v The United Kingdom, Judgment, § 84; GCh, Appl. No. 28341/95, 4 May 2000, Rotaru v Romania, Judgment, §§ 43 and 44; GCh, Appl. No. 27798/95 16 December 2000, Amann v Switzerland, Judgment, §§ 15-29, 65; Appl. No. 44787/98, 25 September 2001, P.G. and J.H. v The United Kingdom, Judgment, §§. 59; Appl. No. 44647/98, 28 January 2003, Peck v The United Kingdom, Judgment, § 59; GCh, Applications Nos. 30562/04 and 30566/04, 4 December 2008, S. and Marper v The United Kingdom, Judgment, § 68.
  • 5. Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, adopted by the Council of Europe in Strasbourg, 28 January 1981, available at http://conventions.coe.int/Treaty/en/Treaties/Html/108.htm.
  • 6. Amendments to the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (ETS No. 108) allowing the European Communities to Accede, adopted by the Committee of Ministers, in Strasbourg, 15 June 1999, available at http://conventions.coe.int/Treaty/en/Treaties/Html/108-1.htm.
  • 7. Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows (CETS No. 181), adopted by the Committee of Ministers of the Council of Europe in Strasbourg, 8 November 2001, available at http://conventions.coe.int/treaty/en/Treaties/Html/181.htm.
  • 8. All Recommendations are available at http://www.coe.int/t/dghl/standardsetting/dataprotection/Legal_instrumen....
  • 9. Council of Europe Recommendation No. R (87) 15 of the Committee of Ministers to Member States regulating the use of personal data in the police sector.
  • 10. Consultative Committee of the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, Draft Recommendation on the Protection of Individuals with Regard to Automatic Processing of Personal Data in the Context of Profiling, adopted at its 26th plenary meeting, June 2010, Strasbourg.