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POZOSTAŃ NA STRONIE ARCHIWALNEJ (GIODO)

What are the rights of individuals whose personal data are kept in the Schengen Information System?

The Convention Implementing the Schengen Agreement regulated both the rules governing the processing of personal data as well as the rights of individuals whose personal data are kept in the Schengen Information System.

Pursuant to Article 109 of the Convention Implementing the Schengen Agreement the right to have access to data entered in the system should be exercised in accordance with the law of the party to the Schengen Convention before which a person invoke that right. It needs to be noted that according to this provision national law may specify whether national supervisory authority provided for in Article 114 (1) of this Convention should decide whether information should be communicated to the individual involved and by what procedures. The above mentioned provision governs also the situation in which natural person intends to exercise the right of access in a state being a party to the Convention Implementing the Schengen Agreement which did not enter the alert. In such a case the party which has not entered the alert may communicate the data only if it has previously given the party issuing the alert an opportunity to state its position.

The right of access is not however an absolute right and pursuant to Article 109 paragraph 2 of the Convention Implementing the Schengen Agreement an individual requesting the access to his/her data kept in the Schengen Information System should be refused the communication of data if this is indispensable for the performance of a lawful task in connection with the alert or for the protection of the rights and freedoms of third parties. Moreover, according to Article 109 (2) in fine it is forbidden to communicate any data entered in the system for the purposes of discreet surveillance carried out on the basis of Article 99 of this Convention.

Provisions of Article 111 (1) of the Convention Implementing the Schengen Agreement are connected with the above mentioned Article. Pursuant to the Article 111 (1) any person may, in the territory of each party to the Schengen Convention, bring before the courts or the authority competent under national law an action to correct, delete or provide information or obtain compensation in connection with a report concerning him or her. According to paragraph 2 of this Article parties to the Schengen Convention should undertake amongst themselves to execute final decisions taken by the courts or authorities referred to in paragraph 1. Each party to the Schengen Convention is responsible, in accordance with its national law, for any injury caused to a person through the use of the national data file of the Schngen Information System. The quoted provision of Article 116 of the Convention is also applicable to the injuries caused by the reporting party if the data were legally or factually inaccurate.

Irrespective of the above indicated rights each individual has the right to ask the supervisory authorities referred to in Article 114 (1) of the Convention Implementing the Schengen Agreement to check the data concerning him or her which are included in the Schengen Information System, and the use which is made of such data. This right is also governed by the national law of the party to which the request is made. If the data have been included by another party to the Schengen Convention, the check shall be carried out in close co-operation with that party's supervisory authority.

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