3.4 If, in the case of a requested or ex officio intended correction, neither the accuracy of the previous nor that of the new personal data can be proven, in principle neither the one nor the other data may be processed (cf. Art. 5 para. 1 FADP). However, this is not always possible, as certain personal data must necessarily be processed in order to fulfill important public tasks. This also applies in particular to names and dates of birth recorded in the ZEMIS. In such cases, the public interest in processing possibly inaccurate data outweighs the interest in its accuracy. Under these circumstances, Art. 25 para. 2 FADP therefore provides for the affixing of a note indicating that the accuracy of the personal data processed is disputed. If there is more to be said for the accuracy of the new data, the previous information must first be corrected and the new data must then be provided with such a note. Whether the previously registered information is to remain retrievable or is to be deleted altogether is generally left to the lower court. If the opposite is the case, i.e. if the correctness of the previously entered data appears to be more probable or at least not less probable, these must be left in place and a note of denial added. A decision on its application must be made ex officio and irrespective of whether a corresponding application has been filed (on the whole, judgments of the FAC A‑4256/2015 of December 15, 2015 E. 3.4, A‑3555/2013 of March 26, 2014 E. 3.4 and A‑181/2013 of November 5, 2013 E. 7.1, each m.w.H.; cf. furthermore judgment of the BGer 1C_240/2012 of August 13, 2012 E. 3.2).
The fact that in the asylum procedure it is apparently assumed in case of doubt that an unaccompanied asylum seeker is a minor (according to the quoted statement of the Federal Council) is understandable in view of the possible legal consequences (such as priority treatment of asylum applications, higher requirements for accommodation and care, more difficult repatriation or even waiver of this under the Dublin procedure). The situation is different in the data protection procedure concerning the correction of personal data in the CEMIS. Here, for good reasons, it is required that the most probable – i.e. predominantly probable – personal data be entered. After all, it should be pointed out in this context that the question of the age of a person recorded in the ZEMIS also arises precisely for the proceedings under aliens or asylum law (cf. ruling of the Federal Supreme Court 1C_224/2014 of September 25, 2014 E. 3.3; rulings of the Federal Administrative Court A‑4313/2015 of December 14, 2015 E. 5 and A‑1732/2015 of July 13, 2015 E. 5.3), which is why a ZEMIS entry may have an impact on the latter. This circumstance must be taken into account by the competent migration authorities, namely the lower court, if an asylum seeker can (at least) credibly show that he or she is still a minor, but his or her majority seems more likely and the date of birth is accordingly recorded in the CEMIS.