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RS 0.235.1 Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data

Original Language Title: RS 0.235.1 Convention du 28 janvier 1981 pour la protection des personnes à l’égard du traitement automatisé des données à caractère personnel

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0.235.1

Original text

Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data

Conclue in Strasbourg on 28 January 1981

Approved by the Federal Assembly on June 5, 1997 1

Instrument of ratification deposited by Switzerland on 2 October 1997
Entry into force for Switzerland on 1 Er February 1998

(State on 31 May 2013)

Preamble

The member States of the Council of Europe, signatories to this Convention,

Whereas the aim of the Council of Europe is to achieve a closer union among its members, including respect for the rule of law as well as human rights and fundamental freedoms,

Whereas it is desirable to extend the protection of the fundamental rights and freedoms of everyone, in particular the right to respect for private life, in view of the intensification of traffic across the borders of character data Personnel undergoing automated processing,

At the same time reaffirming their commitment to freedom of information regardless of frontiers,

Recognising the need to reconcile the fundamental values of respect for private life and the free flow of information between peoples,

Agreed to the following:

Chapter I General provisions

Art. 1 Purpose and Purpose

The purpose of this Convention shall be to guarantee, in the territory of each Party, any natural person, irrespective of his nationality or residence, respect for his or her fundamental rights and freedoms, and in particular his right to Privacy, with regard to the automatic processing of personal data concerning it ("data protection").

Art. 2 Definitions

For the purposes of this Convention:

A.
"Personal data" means: any information concerning an identified or identifiable natural person ("data subject");
B.
"Automated file" means: any set of information subject to automated processing;
C.
"Automated processing" means the following operations carried out in whole or in part by automated processes: data recording, application to these data of logical and/or arithmetic operations, their modification, erasure, Extraction or dissemination;
D.
"Master of the file" means: the natural or legal person, the public authority, the service or any other body that is competent according to the national law, to decide the purpose of the automated file, which categories of data to be Personal character must be registered and implemented.
Art. 3 Scope of application

The Parties undertake to apply this Convention to the automated data files and processing of personal data in the public and private sectors.

2. Any State may, upon signature or deposit of its instrument of ratification, acceptance, approval or accession, or at any later time, make known by declaration addressed to the Secretary-General of the Council of Europe:

A.
That it will not apply this Convention to certain categories of automated personal data files, a list of which will be filed. It should not, however, include in this list categories of automated files subject to its domestic law to data protection provisions. As a result, it will have to amend this list with a new declaration when additional categories of automated personal data files are subject to its data protection regime;
B.
That it will apply this Convention also to information relating to groups, associations, foundations, corporations, corporations or any other body that directly or indirectly includes natural persons and enjoys or Not legal personality;
C.
That it will apply this Convention also to personal data files not subject to automated processing.

3. Any State which has extended the scope of this Convention by one of the declarations referred to in par. 2.b or c above may, in the said declaration, indicate that the extensions will apply only to certain categories of personal files whose list will be filed.

4. Any Party that has excluded certain categories of automated personal data files by the declaration provided for in para. 2.a above shall not be entitled to the application of this Convention to such categories by a Party which has not excluded them.

5. Similarly, a Party that has not carried out any of the extensions provided for in s. 2.b and c of this Article shall not avail itself of the application of this Convention on these points in respect of a Party which has carried out such extensions.

6. The declarations provided for in s. 2 of this Article shall take effect upon the entry into force of the Convention in respect of the State which made them, if that State has made them upon signature or the deposit of its instrument of ratification, acceptance, approval or Of accession, or three months after their receipt by the Secretary-General of the Council of Europe if they were formulated at a later time. Such declarations may be withdrawn in whole or in part by notification addressed to the Secretary-General of the Council of Europe. The withdrawal shall take effect three months after the date of receipt of such notification.

Chapter II Basic principles for data protection

Art. 4 Commitments by the Parties

(1) Each Party shall take, in its domestic law, the measures necessary to give effect to the basic principles for the protection of the data set out in this Chapter.

2. Such measures shall be taken at the latest at the time of entry into force of this Convention in respect of such measures.

Art. 5 Data Quality

The personal data subject to automated processing are:

A.
Obtained and processed fairly and lawfully;
B.
Registered for specified and legitimate purposes and are not used in a manner incompatible with those purposes;
C.
Adequate, relevant and not excessive in relation to the purposes for which they are registered;
D.
Accurate and if necessary updated;
E.
In a form which permits the identification of the persons concerned for a period not exceeding that necessary for the purposes for which they are registered.
Art. 6 Particular categories of data

Personal data revealing racial origin, political opinions, religious beliefs or other convictions, as well as personal data relating to health or sex life, cannot be processed Automatically unless the domestic law provides for appropriate safeguards. The same applies to personal data concerning criminal convictions.

Art. 7 Data security

Appropriate security measures shall be taken for the protection of personal data recorded in automated files against accidental or unauthorised destruction, or accidental loss, as well as against access, Unauthorized modification or diffusion.

Art. 8 Additional guarantees for the data subject

Everyone must be able to:

A.
Know the existence of an automated file of personal data, its main purposes, as well as the identity and habitual residence or principal place of business of the master of the file;
B.
Obtain, at reasonable intervals and without undue delay or expense, confirmation of the existence or not in the automated file, of personal data relating to it, and the communication of such data in an intelligible form;
C.
Obtain, where appropriate, the correction of such data or their deletion when they have been dealt with in violation of the provisions of domestic law giving effect to the basic principles set out in Art. 5 and 6 of this Convention;
D.
Have recourse if the request for confirmation or, where appropriate, of communication, rectification or erasure, referred to in s. B and c of this article.
Art. Exceptions and restrictions

1. No exceptions to the provisions of s. 5, 6 and 8 of this Convention shall not be permitted except within the limits set out in this Article.

2. It is possible to derogate from the provisions of Art. 5, 6 and 8 of this Convention where such a derogation, provided for by the law of the Party, constitutes a necessary measure in a democratic society:

A.
The protection of State security, public safety, the monetary interests of the State or the suppression of criminal offences;
B.
The protection of the person concerned and the rights and freedoms of others.

3. Restrictions on the exercise of rights under s. B, c and d of s. 8 may be prescribed by law for automated files of personal data used for statistical or scientific research, where there is clearly no risk of harm to the privacy of persons Concerned.

Art. 10 Sanctions and remedies

Each Party undertakes to establish appropriate sanctions and remedies for violations of the provisions of domestic law giving effect to the basic principles for the protection of the data set out in this Chapter.

Art. 11 Extended protection

None of the provisions of this Chapter shall be construed as limiting or derogating from the ability of each Party to grant the persons concerned more extensive protection than that provided for in this Convention.

Chapter III Transboundary Flows of Data

Art. 12 Cross-border flows of personal data and internal law

1. The following provisions apply to transfers across national borders, regardless of the medium used, of personal data subject to automated processing or collected for the purpose of submitting them to a Such treatment.

(2) A Party may not, for the sole purpose of the protection of privacy, prohibit or submit to a special authorization the transboundary flows of personal data to the territory of another Party.

(3) However, any Party may derogate from the provisions of s. 2:

A.
To the extent that its legislation provides for specific regulations for certain categories of personal data or automated personal data files, due to the nature of such data or files, except Whether the regulation of the other Party provides equivalent protection;
B.
Where the transfer is made from its territory to the territory of a non-Contracting State through the territory of another Party, in order to prevent such transfers from circumventing the legislation of the Party Referred to at the beginning of this paragraph.

Chapter IV Mutual assistance

Art. 13 Cooperation between the Parties

The Parties undertake to provide each other with assistance in the implementation of this Convention.

2. To this end,

A.
Each Party shall designate one or more authorities to communicate the name and address to the Secretary-General of the Council of Europe;
B.
Each Party which has designated several authorities shall indicate in the communi-cation referred to in the preceding paragraph the competence of each of those authorities.

3. An authority designated by a Party, at the request of an authority designated by another Party:

A.
Provide information on its right and its administrative practice in data protection;
B.
Take, in accordance with its internal law and solely for the purposes of the protection of privacy, all appropriate measures to provide factual information concerning an automated processing carried out on its territory with the exception However, personal data subject to this treatment.
Art. 14 Assistance to persons who have their residence abroad

Each Party shall provide assistance to any person who has his or her residence abroad for the exercise of the rights provided for in his or her domestic law giving effect to the principles set out in Art. 8 of this Convention.

(2) If such a person resides in the territory of another Party, the person shall be entitled to submit his or her application through the authority designated by that Party.

The request for assistance shall contain all the necessary indications concerning in particular:

A.
The name, address and any other relevant identifying information relating to the applicant;
B.
The automated personal data file to which the application relates or the master of that file;
C.
The purpose of the application.
Art. 15 Guarantees concerning the assistance provided by the designated authorities

1. An authority designated by a Party that has received information from an authority designated by another Party, either in support of a request for assistance or in response to a request for assistance itself, may not make use of Such information for purposes other than those specified in the request for assistance.

(2) Each Party shall ensure that persons belonging to or acting on behalf of the designated authority are bound by appropriate obligations of secrecy or confidentiality with respect to such information.

3. Under no circumstances will a designated authority be authorized under s. 14, para. 2, a request for assistance on behalf of a person concerned residing abroad, on his or her own initiative and without the express consent of that person.

Art. 16 Denying requests for assistance

A designated authority, seized of a request for assistance under s. 13 or 14 of this Convention, may refuse to act on it only if:

A.
The application is incompatible with the powers, in the field of data protection, of the authorities entitled to reply;
B.
The application does not comply with the provisions of this Convention;
C.
The execution of the application would be incompatible with the sovereignty, security or public order of the Party that has designated it, or with the fundamental rights and freedoms of persons within the jurisdiction of that Party.
Art. 17 Assistance Fees and Procedures

1. Assistance provided by the Parties under s. 13, as well as the assistance they provide to the persons concerned residing abroad under s. 14, shall not give rise to the payment of costs and rights other than those relating to experts and interpreters. These fees and charges shall be borne by the Party which has appointed the authority which has requested assistance.

2. The person concerned may not be required to pay, in connection with the steps taken on his behalf in the territory of another Party, fees and charges other than those payable by persons resident in the territory of that Party.

3. The other modalities relating to assistance concerning in particular the forms and procedures and the languages to be used shall be established directly between the Parties concerned.

Chapter V Advisory Committee

Art. 18 Membership of the Committee

1. An Advisory Committee shall be established after the entry into force of this Convention.

(2) Any Party shall designate one representative and one alternate for that Committee. Any member state of the Council of Europe which is not a Party to the Convention shall have the right to be represented on the Committee by an observer.

The Advisory Committee may, by a unanimous decision, invite any non-member State of the Council of Europe which is not a Party to the Convention to be represented by an observer at one of its meetings.

Art. 19 Functions of the Committee

The Advisory Committee:

A.
May make proposals to facilitate or improve the implementation of the Convention;
B.
May make proposals for amendments to this Convention in accordance with Art. 21;
C.
Formulate an opinion on any proposed amendment to this Convention submitted to it in accordance with Art. 21, para. 3;
D.
May, at the request of a Party, express an opinion on any matter relating to the application of this Convention.
Art. Procedure

The Advisory Committee shall be convened by the Secretary-General of the Council of Europe. It shall hold its first meeting within twelve months of the entry into force of this Convention. It shall meet thereafter at least once every two years and, in any event, each time that one third of the representatives of the Parties requests its convocation.

2. The majority of the representatives of the Parties shall constitute a quorum for holding a meeting of the Advisory Committee.

3. At the end of each of its meetings, the Advisory Committee shall submit to the Committee of Ministers of the Council of Europe a report on its work and on the functioning of the Convention.

4. Subject to the provisions of this Convention, the Advisory Committee shall establish its rules of procedure.

Chapter VI Amendments

Art. Amendments

Amendments to this Convention may be proposed by a Party, by the Committee of Ministers of the Council of Europe or by the Advisory Committee

2. Any proposed amendment shall be communicated by the Secretary-General of the Council of Europe to the member States of the Council of Europe and to each non-member State which has acceded to or has been invited to accede to this Convention in accordance with the Provisions of s. 23.

In addition, any amendment proposed by a Party or by the Committee of Ministers shall be communicated to the Advisory Committee, which shall submit its opinion to the Committee of Ministers on the proposed amendment.

4. The Committee of Ministers shall consider the proposed amendment and any opinion submitted by the Advisory Committee and may approve the amendment.

5. The text of any amendment approved by the Committee of Ministers in accordance with par. 4 of this Article shall be transmitted to the Parties for acceptance.

6. Any amendment approved in accordance with paragraph 6. 4 of this Article shall enter into force on the thirtieth day after all Parties have informed the Secretary-General that they have accepted it.

Chapter VII Final clauses

Art. Entry into force

This Convention shall be open for signature by the member States of the Council of Europe. It will be subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

2. This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five member States of the Council of Europe have expressed their consent to be bound by the Convention In accordance with the provisions of the preceding paragraph.

3. For any Member State which subsequently expresses its consent to be bound by the Convention, it shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of Ratification, acceptance or approval.

Art. Accession of non-member States

After the entry into force of this Convention, the Committee of Ministers of the Council of Europe may invite any non-member State of the Council of Europe to accede to this Convention by a decision taken by a majority under Art. 20.d of the Statute of the Council of Europe and by unanimity of the representatives of the Contracting States having the right to sit on the Committee.

2. For any acceding State, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of accession to the Secretary-General of the Council of Europe.

Art. 24 Territorial clause

(1) Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, designate the territory or territories to which this Convention shall apply.

2. Any State may, at any other time thereafter, by a declaration addressed to the Secretary-General of the Council of Europe, extend the application of this Convention to any other territory designated in the declaration. The Convention shall enter into force in respect of that territory on the first day of the month following the expiration of a period of three months after the date of receipt of the declaration by the Secretary-General.

(3) Any declaration made under the two preceding paragraphs may be withdrawn, in respect of any territory designated in that declaration, by notification addressed to the Secretary-General. The withdrawal shall take effect on the first day of the month following the expiration of a period of six months after the date of receipt of the notification by the Secretary-General.

Art. 25 Reservations

No reservation shall be made to the provisions of this Convention.

Art. 26 Denunciation

1. Any Party may, at any time, denounce this Convention by sending a notification to the Secretary-General of the Council of Europe.

(2) Denunciation shall take effect on the first day of the month following the expiration of a period of six months after the date of receipt of the notification by the Secretary-General.

Art. 27 Notifications

The Secretary-General of the Council of Europe shall notify the member States of the Council and any State which has acceded to this Convention:

A.
Any signature;
B.
The deposit of any instrument of ratification, acceptance, approval or accession;
C.
Any date of entry into force of this Convention in accordance with its art. 22, 23 and 24;
D.
Any other act, notification or communication relating to this Convention.

In witness whereof , the undersigned, duly authorized to that effect, have signed this Convention.

Done at Strasbourg, on 28 January 1981, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary-General of the Council of Europe shall transmit certified copies to each member state of the Council of Europe and to any State invited to accede to this Convention.

(Suivent signatures)

Scope of application on 31 May 2013 2

States Parties

Ratification

Accession (A)

Statement of Succession (S)

Entry into force

Albania *

February 14

2005

1 Er June

2005

Germany *

19 June

1985

1 Er October

1985

Andorra *

6 May

2008

1 Er September

2008

Armenia *

9 May

2012

1 Er September

2012

Austria *

30 March

1988

1 Er July

1988

Azerbaijan *

3 May

2010

1 Er September

2010

Belgium *

28 May

1993

1 Er September

1993

Bosnia and Herzegovina *

March 31

2006

1 Er July

2006

Bulgaria

18 September

2002

1 Er January

2003

Cyprus *

21 February

2002

1 Er June

2002

Croatia *

21 June

2005

1 Er October

2005

Denmark * A

23 October

1989

1 Er February

1990

Spain *

31 January

1984

1 Er October

1985

Estonia *

14 November

2001

1 Er March

2002

Finland *

2 December

1991

1 Er April

1992

France *

24 March

1983

1 Er October

1985

Georgia

14 December

2005

1 Er April

2006

Greece

August 11

1995

1 Er December

1995

Hungary *

8 October

1997

1 Er February

1998

Ireland *

April 25

1990

1 Er August

1990

Iceland *

25 March

1991

1 Er July

1991

Italy *

March 29

1997

1 Er July

1997

Latvia *

30 May

2001

1 Er September

2001

Liechtenstein *

11 May

2004

1 Er September

2004

Lithuania *

1 Er June

2001

1 Er October

2001

Luxembourg *

10 February

1988

1 Er June

1988

Macedonia *

24 March

2006

1 Er July

2006

Malta *

28 February

2003

1 Er June

2003

Moldova *

28 February

2008

1 Er June

2008

Monaco *

24 December

2008

1 Er April

2009

Montenegro *

6 June

2006 S

6 June

2006

Norway *

20 February

1984

1 Er October

1985

Netherlands * B

August 24

1993

1 Er December

1993

Curaçao

August 24

1993

1 Er December

1993

Caribbean (Bonaire, Sint Eustatius and Saba)

August 24

1993

1 Er December

1993

Sint Maarten

August 24

1993

1 Er December

1993

Poland

23 May

2002

1 Er September

2002

Portugal *

2 September

1993

1 Er January

1994

Czech Republic *

July 9

2001

1 Er November

2001

Romania *

February 27

2002

1 Er June

2002

United Kingdom *

26 August

1987

1 Er December

1987

Guernsey

26 August

1987

1 Er December

1987

Isle of Man *

21 January

1993

1 Er May

1993

Jersey

26 August

1987

1 Er December

1987

Russia *

15 May

2013

1 Er September

2013

Serbia *

September 6

2005

1 Er January

2006

Slovakia *

13 September

2000

1 Er January

2001

Slovenia *

27 May

1994

1 Er September

1994

Sweden *

29 September

1982

1 Er October

1985

Switzerland *

2 October

1997

1 Er February

1998

Ukraine *

September 30

2010

1 Er January

2011

Uruguay

10 April

2013 A

1 Er August

2013

*

Reservations and declarations.

Reservations and declarations, with the exception of those of Switzerland, are not published in the RO. The texts in English and French can be found at the Council of Europe website: http://conventions.coe.int or obtained from the Directorate of Public International Law (DDIP), International Treaty Section, 3003 Berne.

A

The Conv. Does not apply to the Faroe Islands and Greenland.

B

For the Kingdom in Europe.

Statements

Switzerland 3

A. Switzerland, in accordance with art. 3 of the Convention, makes the following declaration:

1.
The Convention also applies to personal data concerning legal persons and personal data files not subject to automated processing.
2.
The Convention does not apply to:
A.
Files created and used by the federal and cantonal Parliaments in their deliberations,
B.
Files of the International Committee of the Red Cross,
C.
Personal data files that a natural person treats for exclusively personal use and does not communicate to third parties.

B. The Federal Data Protection and Transparency Worker 4 " Is the competent authority to grant assistance in the implementation of the Convention.


RO 2002 2847 ; FF 1997 I 701


1 RO 2002 2845
2 RO 2002 2858 , 2004 4133, 2006 2115, 2009 3193, 2012 617, 2013 2075. A version of the updated scope of application is published on the DFAE website (www.dfae.admin.ch/traites).
3 Article 2 of the FA of 5 June 1997 ( RO 2002 2845 ).
4 The designation of the administrative unit has been adapted in accordance with Art. 16 al. 3 of the O of 17 Nov 2004 on Official Publications (RS 170.512.1 ).


Status on May 31, 2013