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CONVENTION OF THE COUNCIL OF EUROPE

of January 28, 1981 No. 108

About protection of physical persons concerning the automated data processing of personal nature

Preamble

The state members of the Council of Europe which signed this document

considering that the purpose of the Council of Europe consists in achievement of the bigger unity between his members based, in particular, on respect of the principle of the rule of law, and also respect for human rights and fundamental freedoms;

considering desirability of expansion of guarantees of the rights and fundamental freedoms for all, and in particular the rights to respect of private life, taking into account increase in cross-border data flow of personal nature, exposed to the automated processing;

confirming at the same time the commitment to freedom of information despite of borders;

recognizing need of approval of such main values as respect of private life and free flow of information between the people,

agreed as follows:

Chapter I. General provisions

Article 1 Subject and purpose

The purpose of this Convention consists in providing in the territory of each Party for each physical person irrespective of his nationality or residence, respect of its rights and fundamental freedoms, and in particular its right to personal privacy, concerning the automated processing of the data of personal nature concerning it (data protection).

Article 2 of Determination

For the purposes of this Convention:

a) "data of personal nature" mean any information on the physical person (the subject of data) determined or giving in to determination;

b) "the automated file of data" means any data set which is exposed to the automated processing;

c) "the automated processing" includes the following transactions performed fully or partially by means of the automated means: data storage, implementation of logical and/or arithmetic transactions with these data, their change, destruction, search or distribution;

d) "the controller of the file" means physical person or legal entity, public authority, organization or any other body, competent according to the domestic legislation to decide what shall be the purpose of the automated file of data what categories of data of personal nature are subject to storage or what transactions shall be made with them.

Article 3 Scope of application

1. The parties shall apply this Convention to the automated files of data of personal nature and the automated data processing of personal nature in the state and private spheres.

2. Any state can during the signing or delivery on storage of the ratification letter or document on acceptance, approval or accession or is later at any subsequent moment to notify by the statement addressed to the Secretary general of the Council of Europe on that:

a) that it will not apply this Convention to certain categories of the automated files of data of personal nature which list will be checked. However it shall not include in this list the categories of the automated files of data falling according to its domestic legislation under action of the regulations regulating data protection. As a result, it shall make changes to this list by the new statement every time when according to its internal law additional categories of the automated files of data of personal nature fall under action of regulations about data protection;

b) that it will also apply this Convention to information concerning the groups of persons, associations, funds, the companies, corporations and any other bodies consisting, directly or indirectly, of individuals irrespective of whether such bodies have legal personality;

c) that it will also apply this Convention to files of data of personal nature which are not exposed to the automated processing.

3. Any state which expanded scope of this Convention with way of any of the statements provided in subparagraphs 2 "b" or "c" is higher, can notify by means of the specified statement that such expansion concerns only certain categories of files of data of personal nature which list will be checked.

4. No Party which excluded certain categories of the automated files of data of personal nature by the statement provided in subparagraph 2 "an" above can demand application of this Convention concerning such categories from the Party which did not exclude them.

5. In the same way, the Party which did not expand scope of application by the statements provided in subparagraphs 2 "b" and "c" is higher, cannot demand application of this Convention concerning these Items from the Party which expanded scope of application thus.

6. The statements provided in paragraph 2 above begin to be effective from coming into force of the Convention concerning the state which made them if they were made during the signing or delivery on storage of its ratification letter or document on acceptance, approval or accession, or in three months after their receipt of the Council of Europe by the Secretary general if they were made at any subsequent moment. These applications can be withdrawn fully or partially by the notification addressed to the Secretary general of the Council of Europe. Such response becomes effective in three months from the date of receipt of such notification.

Chapter II. Fundamental principles of data protection

Article 4 of the Obligation of the Parties

1. Each Party takes necessary measures within the domestic legislation for the purpose of giving of legal force to the fundamental principles of data protection stated in this Chapter.

2. These measures are taken no later than the moment of entry into force of this Convention concerning this Party.

Article 5 Quality of Data

The data of personal nature which are exposed to the automated processing:

a) gather and processed on fair and legal basis;

b) are stored for particular and legal purposes and are not used otherwise, incompatible with these purposes;

c) are adequate, relevant and not excessive for the purposes of their storage;

d) are exact and, when necessary, are updated;

e) remain in the form allowing to identify subjects of data, not longer than it is required for the purposes of storage of these data.

Article 6 Special categories of data

The data of personal nature concerning race, political views or religious or other beliefs and also the data of personal nature concerning health or sex life cannot be exposed to the automated processing if the domestic legislation does not establish the corresponding guarantees. This provision is effective also concerning the data of personal nature concerning criminal record.

Article 7 Data protection

For personal data security, the automated files of data which are stored in, the proper measures of safety directed to prevention of their accidental or unauthorized destruction or accidental loss, and also to prevention of unauthorized access, their change or distribution of such data are taken.

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