On Submitting Personal Data to Court Bailiffs

Pepeliaev Group advises that a draft law “On Amendments to Certain Legislative Acts of the Russian Federation on Submitting Personal Data to Court Bailiffs” was submitted to the State Duma on 19 February 2010. The State Duma Council considered and approved the draft law on 23 March 2010.

The draft law introduces an addition to article 14 of Federal Law No. 118-FZ dated 21 July 1997 “On Court Bailiffs”, specifying that the information, which should be submitted by the authorities, companies, officials and citizens, may contain personal data of individuals. The draft law proposes amending clause 2, article 14 of the above law to read as follows: “Information, including personal data of individuals, in the volume necessary for a court bailiff to fulfill his official duties in accordance with Russian legislation on enforcement proceedings, shall be submitted at the request of the court bailiff in a form of notes, documents and copies thereof on a gratuitous basis and within the period established by the court bailiff”.

The draft law also proposes adding the following text to article 64 of Federal Law No. 229-FZ dated 2 October 2007  “On Enforcement Proceedings”, clarifying the principles and terms for the processing of personal data by the court bailiff:

“Personal data of individuals obtained by the court bailiff during the performance of his official duties shall be processed by the court bailiff for the purposes and in the volume required to enforce execution documents”.
By virtue of Federal Law No. 152-FZ dated 27 July 2006 “On Personal Data”, the lack of a reference in legislation on enforcement proceedings to the court bailiff’s right to request the personal data of individuals from operators precludes court bailiffs from obtaining information on individuals from certain authorities and organisations.

Consequently, the legislator proposes through the above draft law to resolve the inconsistency of legislation on enforcement proceedings and the underlying principles of processing personal data, as established by the Federal Law “On Personal Data”.

This issue was especially acute for telecom operators, which in some cases even led to litigation.
Pursuant to clause 1, article 3 of the Federal Law “On Personal Data”, personal data means any information relating to an individual, including his or her first name, surname, patronymic, year, month and day of birth, address, marital status, social, property status, education, profession, income and other information.

In accordance with sub-clause 1, clause 2, article 6 of the above law, personal data may be transferred without the consent of the holder of personal data, provided the data is transferred on the basis of the federal law stipulating the goal and the terms for obtaining personal data and the range of persons, whose personal data are to be processed, as well as the rights of an operator.

Clause 1, article 53 of Federal Law No. 126-FZ dated 7 July 2003 “On Communications” classifies information about subscribers and telecom services provided to them that became known to the operator by virtue of the discharge of the telecom services agreement as confidential and subject to protection in accordance with Russian legislation.

Federal Law No. 149-FZ dated 27 July 2006 “On Information, Information Technologies and Data Protection” defines confidentiality of information as a mandatory requirement for a person granted access to certain information not to transfer such information to third parties without the consent of its holder (clause 7, article 2).

By virtue of article 9 of the above law, the confidentiality of information, access to which is restricted by federal legislation, must be respected.

Telecom operators, by virtue of article 64 of the Federal Law “On Communications”, must submit to the competent authorities responsible for investigative activities or Russia’s national security information about the users of telecoms services and the services that were provided to them, as well as any other information required by these authorities to accomplish their tasks in the cases stipulated by law.

As court bailiffs are not authorities that engage in criminal investigative activities or ensure the national security of Russia, the possibility of granting them personal data stipulated by the Federal Law “On Communications” does not apply to them.

The Federal Law “On Court Bailiffs” and the Federal Law “On Enforcement Proceedings” in their current versions do not contain grounds entitling a court bailiff to obtain the personal data of individuals within the scope of enforcement proceedings, although such individuals may be parties to the proceedings by virtue of part 1, article 49 of the Federal Law “On Enforcement Proceedings”.

As Russian legislation on the protection of personal data does not stipulate that court bailiffs may be provided with information containing the personal data of citizens that are debtors under enforcement documents, the operators of personal data, including telecom operators, have the right to refuse to provide the requested information to court bailiffs.

In practice, in the event of the refusal to provide personal data, court bailiffs issue a ruling on an administrative fine for violation of enforcement legislation committed by a person that is not a debtor, as demonstrated by failure to comply with the legitimate requests of a court bailiff on the basis of part 3, article 17.14 of the Russian Code of Administrative Offences.

In most cases, courts when considering disputes between court bailiffs and telecom operators, proceed from the assumption that a court bailiff cannot request personal data from telecom operators within the scope of enforcement proceedings (for example, Resolution No. F09-6263/09-C1 of the Federal Arbitration Court for the Urals Circuit dated 17 September 2009, Resolution No. A06-6566/2009 of the Federal Arbitration Court for the Volga Circuit dated 28 January 2010, Resolution No. A48-4571/2009 of the Nineteenth Arbitration Court of Appeal dated 15 February 2010 and Resolution No. 09AP-9584/2009-AK of the Ninth Arbitration Court of Appeal dated 25 June 2009).

It remains to be seen whether or not the above amendments will be introduced to the Federal Law “On Court Bailiffs” and the Federal Law “On Enforcement Proceedings”.

Pepeliaev Group will keep you informed of developments.

For further information, please contact:

Natalya Ivashchenko, Head of telecommunications group, at: (495) 967-0007 or by e-mail: n.ivashchenko@pgplaw.ru; Maria Kolesnik, Associate, at: (495) 967-0007 or by e-mail: m.kolesnik@pgplaw.ru

in St Petersburg  -  Sergey Spasennov, Head of St. Petersburg office, on tel.: (812) 333-07-17 or by e-mail: s.spasennov@pgplaw.ru