AKI (Estonia) - 2.1-3/20/172
From GDPRhub
| AKI - nr.2.1-3/20/172 | |
|---|---|
 | |
| Authority: | AKI (Estonia) |
| Jurisdiction: | Estonia |
| Relevant Law: | Article 16 GDPR Article 17 GDPR |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | |
| Decided: | 11.03.2020 |
| Published: | |
| Fine: | None |
| Parties: | n/a |
| National Case Number/Name: | nr.2.1-3/20/172 |
| European Case Law Identifier: | n/a |
| Appeal: | Not appealed |
| Original Language(s): | Estonian |
| Original Source: | AKI (in ET) |
| Initial Contributor: | n/a |
The Estonian Data Protection Authority (AKI) ruled on the removal of information from a criminal record. If a higher court does not amend or annul the conviction, the complainant has no right to request the rectification or deletion of the information from the criminal record.
English Summary
Facts
The appellant filed a complaint with the AKI ordering the immediate removal from the criminal record incorrect information published there. According to the appellant, there are no penalties in force against him. The appellant finds that the Circuit Court has not enforced the judgment of the County Court in the conviction and thus, he has not been punished.
Dispute
In order to resolve the challenge raised by the appellant, the AKI declared that it is necessary to resolve the question whether there are penalties in force against the appellant and whether the information in the criminal record is correct.
Holding
In order to find out the above, the AKI approached different registers and found that the disclosure of the criminal record is lawful. The AKI does not agree with the complainant of the challenge that it has no valid one penalties. The appellant was found guilty. This decision was not annulled by the Supreme Court and therefore remained in force. Also the Circuit Court did not amend or annulet the conviction. Due to the this, the appellant continues to be convicted. Thus, the disclosure of data in the criminal record is lawful.
Comment
Further Resources
Share blogs or news articles here!
English Machine Translation of the Decision
The decision below is a machine translation of the Estonian original. Please refer to the Estonian original for more details.
Page 1 PROTECTION OF PRIVACY AND TRANSPARENCY Tatari tn 39/10134 Tallinn / 627 4135 / info@aki.ee / www.aki.ee Registry code 70004235 CONTEST DECISION personal data protection case no. 2.1-3 / 20/172 Decision maker Director General of the Data Protection Inspectorate Pille Lehis Time and place of making the decision 11.03.2020 in Tallinn Time to file a challenge 1/15/2020 The contested administrative act or operation Procedure of the Data Protection Inspectorate 03.01.2020 notice of termination in personal data protection case no. 2.1-1 / 19/4023 Challenger Private person address: Xxxxxx x, xxxxx Xxxxx email address : xxxxxxx@gmail.com RESOLUTION: Pursuant to clause 85 4) of the Administrative Procedure Act (HMS) I decide: - Dismisses the challenge as the information is disclosed in the criminal record legally CONTEST REFERENCE: The appellant may challenge this decision within 30 days by submitting an appeal to an administrative court in accordance with the Code of Administrative Court Procedure. FACTUAL FACTS: On 8 November 2015, the complainant submitted a complaint to the Data Protection Inspectorate with the following content Despite the fact that the judgment 1-11-10084 of the Tartu County Court of 25 September 2014 has been annulled and it has not been re-enforced and I have not been convicted by any other court judgment of § 2 of the Penal Code. 121, I am still entered in the national criminal record as a convicted person for physical abuse on the basis of § 121 of the Penal Code. Page 2 2 (7) I have previously approached the Director General of AKI on this subject, but without any of mine without rejecting the evidence / allegation, the complaint was refused and the criminal record was illegal the initiation of proceedings. To date, I have been advised by lawyers to take the view that the AKI Director General in such a case activities had all the characteristics of a criminal offense under § 291-1 of the Penal Code: exercising state supervision failure of an official to take a decision or act unlawfully, if there is another other serious consequences for the person. Namely, since the Director - General did not request the deletion of incorrect data from the criminal record, they are also available to Postimees journalists who distributed the article on January 11, 2019 In 17 months, 17 criminals joined the Center Party, among other things, misinformation that a Private person is convicted of physical abuse. As it is known, in the first half of this year, Estonia undertook to fulfill Europe Regulation 2016/679 of the European Parliament and of the Council and consequently the protection of personal data was introduced by law, the Data Protection Inspectorate was obliged to exercise supervision in Regulation 2016/679 compliance with the requirements provided for in this Act and the requirements established in other Acts for the processing of personal data and because the publication of incorrect data in the criminal record continues, and because the Regulation 2016/679 Article no. 77 also gives me a new legal basis for lodging this complaint and Art.78 in turn the right to an effective remedy, it is therefore a reference to this complaint to you again. If again this time AKI does not process my complaint and promises to continue with incorrect special types of personal data publication in the criminal register, it would prove that in fact Estonia does not protect the citizens of the European Union and does not comply with Regulation 2016/679 of the European Parliament and of the Council, which would necessitate recourse assistance to the institutions of the European Union. In connection with the above, I demand that the Data Protection Inspectorate implement the European Parliament swiftly and the measure referred to in Article 58 (2) (g) of Council Regulation 2016/679 immediately delete incorrect data from the criminal record, ie that I have been convicted of the Penal Code On the basis of § 121. I also demand that the Data Protection Inspectorate implement Regulation 2016/679 in order to comply with Article 84 and the right / obligation under Article 58 (5) of the Regulation to effectively punish the perpetrators to file a criminal complaint in connection with a criminal offense pursuant to § 157-1 of the Penal Code committed by the punishment register. Namely, the statement or understanding that the decision of the Tartu County Court of 25 September 2014 is still in force and valid is multiple and manifestly incorrect. First, the Tartu Circuit Court certifies on 28.11.2014 Judgment 1-11-10084 that the judgment of the Tartu County Court of 25 September 2014 was annulled in full. Second, on 1 May 2015, paragraph 1 of Resolution 3-1-1-29-15 of the Supreme Court certifies that the Supreme Court did not annul the decision of the circuit court of 28 November 2014 in its entirety, but only in part in the acquittal part and, thirdly, on 4 May 2015, the main part of the judgment of the Supreme Court clauses 13 and 14 that the Supreme Court did not enforce the county court on 25 September 2014 on the basis of § 361 (1) 5) of the CCP decision can therefore no longer be valid. Clauses 13 and 14 also prove that the matter was remanded on the basis of § 361 (1) 6) of the CCP which should have given rise to either a new acquittal or a new one conviction because the first two convictions of a county court in a criminal case 1- 13-10084 were both canceled. Oddly enough, however, the "third round" acquittal not formalized and because apparently the composition of the circuit court did not want to Page 3 3 (7) to formally draw up a false conviction and commit it pursuant to § 311 crime, the whole procedure ended strangely, that is, without acquittal and without without a conviction. This fact is fully proved by the Tartu Circuit Court on 19.06.2015 Curious Judgment 1-11-10084 in which there is no mention of my acquittal or conviction: namely, the judgment of 25.09.2014, which is no longer in the legal sense, was not changed for the most part existed as it was revoked on 28.11.2014. As the Supreme Court did not accept the cassation appeal on 21 October 2015 by Regulation No. 3-7-1-1-669 proceedings, the strange decision of the circuit court of 19.06.2015 also entered into force on 21 October 2015 and This fact, in turn, proves that the Supreme Court also agreed that criminal case 1-11-10084 may end without acquittal or conviction. Finally, due to a recent change, only digital signatures can currently be given on a computer that has 64-bit basic software, but my computer has 32-bit software, so that's why I can't digitally sign on my home computer. However, the European Parliament and the Council Regulation 2016/679 prohibiting the submission of a complaint by e-mail without a digital signature. 03.01.2020 The Data Protection Inspectorate terminated the proceedings on the following grounds Your complaint has been registered with the Data Protection Inspectorate, according to which it is in the criminal register an entry which is not based on a valid judgment. First of all, I apologize for the delay in giving you an answer. In addition, I explain that 20.09.2017 did On the basis of the same circumstances, the Data Protection Inspectorate issued a decision No. 2.1-3 / 17/1662 and the position of the Inspectorate on this issue has not changed since the decision on the challenge. However, five The Data Protection Inspectorate conducted a supervisory process to verify whether criminal records the deadline for archiving has arrived. The Center of Registers and Information Systems has explained the following in the reply forwarded to the Inspectorate: We explain that a private person has been punished under criminal law twice. Of the Supreme Court on 24.04.2012 Decision 1-11-7144 / 83 sentenced the person to two years' imprisonment, which was enforced in part. He was immediately sentenced to six months in prison and partly on parole the released part was one year and six months imprisonment with a four-year probation period. Because the person put during the probationary period, a new sentence was added to the sentence. Tartu County Court Valga Court Decision No. 1-13-10084 / 92 of 25.09.2014 sentenced a person to a suspended sentence of one imprisonment for one year and six months with a three - year probation period. The probationary period began 25.09.2014 and the end was 25.09.2017. § 24 (1) of the Penal Register Act (hereinafter Penal Register) on the basis of clause 6, the criminal record shall be entered in the archives of the register as conditional imprisonment three years have elapsed since the end of the probationary period in the case of release. Named the sentence will therefore not be transferred to the archives until 25.09.2020. The Data Protection Inspectorate agrees with the reasons of the Center of Registers and Information Systems. Due to the above and the fact that the entry in the criminal record has been made on the basis of a valid court judgment and the deadline for entry in the archives has not expired, I will close the supervision procedure. CLAIMER'S CLAIM AND EXPLANATION: It is known that in the first half of 2019, Estonia undertook to fulfill the European Parliament and Council Regulation 2016/679. Because incorrect information has been published about me in the national criminal record, that is why Page 4 4 (7) On November 8, 2015, I filed a complaint with the Data Protection Inspectorate (AKI) and demanded that the AKI rapidly implement Article 58 (2) (g) of Regulation 2016/679 of the European Parliament and of the Council and order the immediate removal of me from the criminal record incorrect information published there. I also demanded that the Data Protection Inspectorate implement to comply with Article 84 of Regulation 2016/679 and to effectively punish the perpetrators also in Article 58 of the Regulation the right / obligation arising from clause 5 to file a criminal complaint in connection with the criminal record committed a criminal offense pursuant to § 157-1 of the Penal Code. The appeal to AKI was caused by the fact that despite the fact that the Tartu County Court Judgment 1-13-10084 of 25 September 2014 has been set aside and has not been re-enforced and I am not also convicted by any other court judgment on the basis of § 121 of the Penal Code, is in the state I was still entered in the criminal record as a person who had been convicted by the Tartu County Court 25 September 2014 by a court judgment 1-13-10084 for physical abuse on the basis of § 121 of the Penal Code Unfortunately, the Data Protection Inspectorate's answer no. 2.1.-1/19/4023 it appears that AKI no pursuant to the Personal Data Protection Act which entered into force on 15.01.2019 or the European Parliament and Council Regulation 2016/679, but from the previous legal order and made on 20.09.2017 from the appeal decision No. 2.1-3 / 17/1662, therefore, without any justification, explicitly considers that Tartu Judgment 1-11-10084 of the County Court of 25 September 2014 is still valid and closed my appeal personal data protection proceedings. Since I find that AKI 03.Jan 2020 in answer no. 2.1.-1/19/4023 the year 2019 has been completely ignored the Personal Data Protection Act and the European Parliament and the Council Regulation 2016/679 and is based on an obvious false allegation that the Tartu County Court of 25 September 2014 Judgment 1-11-10084 is still valid, therefore, pursuant to § of the Administrative Procedure Act 71 (1), I present this challenge, in which I request that the AKI 03.Jan 2020 notice of termination of proceedings no. 2.1.-1/19/4023 would be repealed and a precept would be issued obliging AKI Article 58 (2) of Regulation 2016/679 of the European Parliament and of the Council "G" and an order would be immediately deleted from the criminal record incorrect information published there. I also request that the Data Protection Inspectorate implement Art. 84 of Regulation 2016/679 Article 58 (5) of the Regulation the right / obligation to file a criminal complaint in connection with § 157 of the Penal Code committed by the criminal record; With a crime after 1. I also announce that after the Personal Data Protection Act and the European Parliament and the Council the entry into force of Regulation 2016/679 on 15.01.2019 and in connection with incorrect data about me with continued publication in the state criminal register even after 15.01.2019, has not entered into force judgment and no court proceedings. Finally, I would like to draw the attention of the present investigators to the following evidence, which all certify that the judgment 3-1-13-10084 of the Tartu County Court of 25 September 2014 no longer exists: 1-) Paragraph 1 of the resolution of the Tartu Circuit Court judgment of 28.11.2014 3-1-13-10084: “To annul the judgment of the Tartu County Court of 25 September 2014 in criminal case no. 1-13-10084 in full to the extent that 2-) Judgment of the Supreme Court of 4 May 2015 3-1-1-29-15 clause 13 certifies that the Supreme Court did not enforce again the judgment of the county court of 25.09.2014 on the basis of § 361 (1) 5 of the CCP, but on the basis of § 361 (1) 6 of the CCP referred the matter for reconsideration, as evidenced by the following text: "Pursuant to Article 9 and 10 and pursuant to § 362 (2), § 339 (2), § 361 (1) (6) and (2) of the CCP and § Page 5 5 (7) 341 (3), the Criminal Chamber of the Supreme Court annuls the decision of the Tartu Circuit Court of 28 November The 2014 decision on the acquittal of a private person pursuant to § 121 of the Penal Code and sends the criminal matter as a new one to the same circuit court in another formation of the court. " 3-) The recent letter No. 7-7 / 19-665 (Appendix 1) of the Chief Justice of the Supreme Court of 13 November 2015 once again certifies that that the judgment of the county court of 25.09.2014 has not been re-enforced. Namely, as you can see for yourself, that's it the following text is written in the letter: “I explain that the Chief Justice of the Supreme Court does not have the competence to make a substantive assessment issuing court orders outside the procedure for initiating disciplinary proceedings against a judge. However, in connection with the cassation proceedings in the Supreme Court, I consider it possible to answer you to the argument contained in the application that Tartu was not enforced by the judgment of the Supreme Court of 4 May 2015 Judgment of the County Court of 25.09.2014. Namely, the criminal case is in appeal proceedings in case of annulment of a decision of a circuit court, different decisions within the competence of the Supreme Court: whether to send return the criminal case to the county or circuit court, enforce the decision of the county court, terminate proceedings in a criminal matter or to make a new decision himself or herself (§ 361 of the Code of Criminal Procedure (CCP)) GROUNDS FOR THE DATA PROTECTION INSPECTORATE: Claimant 's claims In his challenge, the appellant has stated the following: “ It is known that Estonia took the first year of 2019 to comply with Regulation 2016/679 of the European Parliament and of the Council. Because incorrect information has been published about me in the national criminal record, that is why On November 8, 2015, I filed a complaint with the Data Protection Inspectorate (AKI) and demanded that the AKI rapidly implement Article 58 (2) (g) of Regulation 2016/679 of the European Parliament and of the Council and order the immediate removal of me from the criminal record incorrect information published there. I also demanded that the Data Protection Inspectorate implement to comply with Article 84 of Regulation 2016/679 and to effectively punish the perpetrators also in Article 58 of the Regulation the right / obligation arising from clause 5 to file a criminal complaint in connection with the criminal record committed a criminal offense pursuant to § 157-1 of the Penal Code. ” First of all, I think it is necessary to clarify that criminal records data are not a special type personal data or data on the commission or commission of an offense before a court session or making a decision in a matter of offense, ie with the information of § 157 1 of the Penal Code . Also, the act provided for in § 157 1 of the CAA is not a criminal offense, but a misdemeanor responsibility. Nor can you, as the complainant, demand any specific information from the Data Protection Inspectorate measures or punish someone, because the Data Protection Inspectorate as the supervisory authority has a margin of discretion in the choice and implementation of measures. To this view courts have also been set up on several occasions. For example, the Supreme Court is in clause 15 of case no. 3-3-1-44-10 stated the following: “The Chamber is of the opinion that a person has no subjective right to demand initiating supervision proceedings or taking specific action against a third party if the rules of competence and authority provide the supervisory authority with a discretion in this way to initiate the supervision procedure as well as to implement the supervision measure. Person concerned (a person whose rights may be infringed by the unlawful conduct of a third party) may, however, claim that: the supervisory authority decides to initiate supervisory proceedings or a supervisory action without any error of assessment if he is also protected by a supervisory rule legal interest ’. In addition, I consider it necessary to clarify that both the previously applicable Personal Data Protection Act and Page 6 6 (7) The General Regulation on the Protection of Personal Data of the European Union, which entered into force in 2019, prescribes a person the right to have inaccurate data rectified or where there is no legal basis for processing the data termination or erasure of the data. Therefore, the entry into force of the General Regulation In 2019, the requirements for the processing of personal data in this regard have changed. Challenger the measure referred to in Article 58 (5) (g) of the General Data Protection Regulation can be obtained The Data Protection Inspectorate can be applied if there is no data for processing / disclosure legal basis. In order to resolve the challenge raised by the appellant, it is first necessary to resolve the question whether there are penalties in force against the appellant and whether the information in the criminal record is correct, which was also the case the subject of the complaint. In order to find out the above, Data Protection turned to the resolution of the complaint The Inspectorate also approached the Center of Registers and Information Systems and found that in the criminal record disclosure of the data is lawful. According to the appellant, there are no penalties in force against him The appellant is of the opinion that the judgment of the Tartu County Court of 25 September 2014 3-1-13-10084 no longer exists for the following reasons: 1-) Paragraph 1 of the resolution of the Tartu Circuit Court judgment of 28.11.2014 3-1-13-10084: “To annul the judgment of the Tartu County Court of 25 September 2014 in criminal case no. 1-13-10084 in full to the extent that 2-) Judgment of the Supreme Court of 4 May 2015 3-1-1-29-15 clause 13 certifies that the Supreme Court did not enforce again the judgment of the county court of 25.09.2014 on the basis of § 361 (1) 5 of the CCP, but on the basis of § 361 (1) 6 of the CCP referred the matter for reconsideration, as evidenced by the following text: "Pursuant to Article 9 and 10 and pursuant to § 362 (2), § 339 (2), § 361 (1) (6) and (2) of the CCP and § 341 (3), the Criminal Chamber of the Supreme Court annuls the decision of the Tartu Circuit Court of 28 November The 2014 decision on the acquittal of a private person pursuant to § 121 of the Penal Code and sends the criminal matter as a new one to the same circuit court in another formation of the court. " The Data Protection Inspectorate does not agree with the submitter of the challenge that it has no valid ones penalties 1. On 25 September 2014, the Tartu County Court made a judgment in which the appellant was found guilty of § 121 of the Penal Code on the basis of. 2. On 28 November 2014, the Tartu Circuit Court annulled the judgment of the County Court on 25 September 2014 and ruled on the challenge the petitioner is acquitted pursuant to § 121 of the Penal Code 3. On 4 May 2015, the Supreme Court annulled the decision of the Tartu Circuit Court on 28 November 2014 pursuant to § 121 of the Penal Code and sent the criminal matter to the Tartu Circuit Court for a new hearing in the new composition. As the Supreme Court annulled the decision of the Circuit Court regarding the acquittal of the appellant, it remained the decision of the County Court regarding the conviction of the appellant enters into force. However, since the decision of the County Court was appeal, the Supreme Court ordered the Circuit Court in its new composition to be the County Court To review the court judgment on 25.09.2019. The Supreme Court did not annul the judgment of the County Court of 25.09.2014, but only the decision of the Circuit Court acquitting the appellant. It therefore remained in force 25.09.2014 Judgment of the county court regarding the conviction of the appellant. The district court, if another the court of first instance does not review the matter from the beginning, but assesses the legality of the decision of the County Court. In other words, the Circuit Court had to reconsider the decision of the County Court of 25.09.2014 the appellant was found guilty pursuant to § 121 of the Penal Code. 4. On 19 June 2015, the Circuit Court annulled / amended the 25th judgment of the Tartu County Court. Page 7 7 (7) September 2014 in part as regards the costs of the proceedings, which are reflected in the judgment paragraphs 1 to 4 of the resolution. In paragraph 5 of the operative part of the judgment, the Court stated “ Otherwise leave the judgment of the county court unchanged. Dismisses the appeals “ Thus, the decision of the County Court was upheld the conviction of the appellant without changing pursuant to § 121 of the Penal Code and the decision of the Circuit Court upon its entry into force, it entered into force, as it was not amended or annulled by the Circuit Court. The appellant finds that the Circuit Court has not enforced the judgment of the County Court in the conviction and thus, he has not been punished. In order to prove his position, the appellant has also added the Supreme Court the President 's reply to his request, which, in the view of the appellant, proves once again that: The judgment of the County Court of 25.09.2014 has not been re-enforced. The Chief Justice of the Supreme Court is a challenge to the appellant explained the following: “I explain that the Chief Justice of the Supreme Court does not have a substantive assessment within his competence issuing court orders outside the procedure for initiating disciplinary proceedings against a judge. However, in connection with the cassation proceedings in the Supreme Court, I consider it possible to answer you to the argument contained in the application that Tartu was not enforced by the judgment of the Supreme Court of 4 May 2015 Judgment of the County Court of 25.09.2014. Namely, the criminal case is in appeal proceedings in case of annulment of a decision of a circuit court, different decisions within the competence of the Supreme Court: whether to send return the criminal case to the county or circuit court, enforce the decision of the county court, terminate proceedings in a criminal matter or to make a new decision yourself § of the Code of Criminal Procedure (CCP) 361). ” Since in the present case the Supreme Court sent the matter to the Circuit Court for reconsideration, the Supreme Court could not enforce the decision of the County Court because the above list is mutually exclusive. If If the Supreme Court had enforced the decision of the County Court, the Circuit Court would not have been able to do so no longer reviewed. At the same time, the appellant has ignored the following explanation of the Chief Justice of the Supreme Court: " The jurisdiction of a circuit court is set out in § 337 of the CCP and this section does not prescribe the obligation of the circuit court to enforce the decision of the county court in its resolution of judgment if the contested decision is left unchanged, and the appeal is dismissed. " As this In a court judgment of 19.06.2015, the circuit court partially annulled the decision of the County Court on the costs of the proceedings and pursuant to paragraph 5 of the resolution, the Circuit Court upheld the judgment of the County Court and appeals were not upheld, the judgment of the County Court in respect of the sentence remained in force. As is the Supreme Court the chairman explained to the appellant, the law does not provide for an obligation in the judgment resolution to enforce the decision of the county court if the decision is not changed in any part and the appeal is dismissed. Due to the above, the appellant continues to be convicted by the KarS by a court judgment of 25.09.2014 Pursuant to § 121. Thus, the disclosure of data in the criminal record is lawful, which remains a challenge unsatisfied. with respect /signed digitally/ Pille Lehis Director - General
