EHRM, 07-12-2006, nr. 29514/05

The applicant, Mr Hendrik Jan van der Velden, is a Netherlands national who was born in 1965 and lives in Dordrecht. He was represented before the Court by Mr G. van Buuren, a lawyer practising in Weert.

The applicant complained under Article 7 of the Convention that the order given by the public prosecutor, the taking of a sample of cellular material and the storage of the DNA profile derived therefrom in the DNA database amounted to an extra penalty which it had not been possible to impose at the time he committed the offences of which he was convicted.

He further complained that the impugned measure infringed Article 8 of the Convention, in that it constituted an unjustified interference with his right to respect for his private life.

Finally, the applicant argued that he had been the victim of discrimination as prohibited by Article 14 of the Convention.

The applicant complained that, after his conviction and sentencing, a further penalty — not available at the time he committed the offences — was imposed on him following the entry into force of the Act. He invoked Article 7 of the Convention which, in so far as relevant, provides as follows:

The question may arise whether the applicant can be said to have exhausted domestic remedies as required by Article 35 § 1 of the Convention. This requirement entails that complaints intended to be made subsequently at the international level be raised, at least in substance, at the domestic level (see, among other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I). While it is true that the applicant, in the proceedings before the Roermond Regional Court, argued that the order imposed on him contravened Article 7 of the Convention, the Court nevertheless notes that in the course of the hearing before that tribunal, his representative conceded that the measure at issue did not constitute a punishment. However, the Court considers that it is not necessary to determine this issue, since the complaint is in any event inadmissible for the following reasons.

The Court notes that the DNA Testing (Convicted Persons) Act entered into force after the applicant had committed the offences for which he was convicted and sentenced. The only relevant question is, therefore, whether the order to provide cellular material and the compilation and storage of the applicant's DNA profile can be considered a ‘penalty’ within the meaning of the second sentence of Article 7 § 1 (see Adamson v. the United Kingdom (dec.), no. 42293/98, 26 January 1999).

The Court reiterates that the concept of ‘penalty’ in Article 7 of the Convention is an autonomous concept: it is for the Court to determine whether any particular measure is a ‘penalty’. The second sentence of Article 7 § 1 indicates that the starting point of such a determination is whether the measure in question was imposed following conviction of a ‘criminal offence’. Other relevant factors are the characterisation of the measure under domestic law, its nature and purpose, the procedures involved in its making and implementation, and its severity (see Welch v. the United Kingdom, judgment of 9 February 1995, Series A no. 307, p. 13, §§ 27 and 28).

As already noted above, there is a clear link in the present case between the conviction and the impugned measure: the provisions of the Act automatically applied to the applicant because, at the time of the entry into force of the Act, he was serving a sentence following his conviction of a criminal offence carrying a statutory maximum prison sentence of at least four years.

As to the domestic characterisation of the impugned measure, the Court notes that a separate law, the DNA Testing (Convicted Persons) Act, was enacted in order to allow for DNA testing of convicted persons to take place. Although this element is not by itself sufficient to conclude that DNA testing as prescribed in the Act is not characterised as belonging to the realm of criminal law, it is nevertheless to be noted that an order for DNA testing to be carried out is not listed among the penalties and measures provided for in the Criminal Code (see Relevant domestic law above).

The Court further observes that the applicant has not indicated to what extent the measure has a ‘punitive’ nature or purpose under Article 7, other than that it was imposed following a criminal conviction. It notes in this context that the aim of the Act, as set out in the explanatory memorandum, is ‘the prevention, detection, prosecution and trial of criminal offences’ — i.e. criminal offences that the convicted person has previously committed or may commit in the future, and not the particular criminal offence of which he or she was convicted. Having regard to the stated aim of the Act and also to the nature of the Act's requirements, the Court considers that the purpose of the measure in question is to assist in the solving of crimes, including bringing their perpetrators to justice, since, with the help of the database, the police may be enabled to identify perpetrators of offences faster, and to contribute towards a lower rate of re-offending, since a person's knowledge that his or her DNA profile is included in a national database may dissuade him or her from committing further offences. The Court considers that, seen in this light, the Act merely employs the applicant's conviction as a criterion by means of which he could be identified as a person who has shown himself capable of committing an offence of a certain seriousness, rather than that the measure in question is to be seen as intending to inflict a punishment upon him in relation to the particular offences of which he has been convicted.

As for the procedures involved in the imposition of the order and its implementation, the Court accepts that it was imposed on the applicant by a public prosecutor, i.e. an official belonging to the criminal justice system. Nevertheless, the order was given as a matter of law, with no additional procedure, following conviction of an offence carrying a statutory maximum prison sentence of at least four years. Beyond the requirement to provide cellular material, no further procedures were involved in the implementation of the order on the part of the applicant. It is moreover to be noted that in case of a failure to comply with the order, the Act provides for the arrest of the person concerned and for his or her detention for a limited period in order for his or her identity to be established and cellular material to be obtained. There is thus no question of the original sentence, imposed at the time of the conviction which rendered the convicted person liable to DNA testing pursuant to the Act, being increased (cf. Welch, cited above, p. 9, § 14).

Finally, as to the severity of the measure imposed, the Court reiterates that the severity of a measure is not decisive (ibid., p. 14, § 32). In any case, it does not find that the obligation to provide cellular material can, in itself, be regarded as severe.

Overall, the Court considers that, given in particular the way in which the measure imposed by the Act operates completely separately from the ordinary sentencing procedures, and the fact that it does not, ultimately, require more than a mouth swab from the applicant, it cannot be said that the measure imposed on him amounted to a ‘penalty’ within the meaning of Article 7 of the Convention.

It follows that Article 7 is not applicable in the present case, so that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.

The applicant also alleged a violation of Article 8 of the Convention, which, in so far as relevant, provides as follows:

While the applicant conceded that the measure was in accordance with the law and served a legitimate aim, he argued that it was not necessary in a democratic society, given that DNA material or his DNA profile had never played a role in the investigation, prosecution or trial of criminal offences committed by him. The measure was therefore disproportionate.

The Court should first consider whether the impugned measure amounted to an interference with rights protected by Article 8 since, if this is not the case, there is no need for a justification of the measure. As far as the taking of a mouth swab in order to obtain cellular material from the applicant is concerned, the Court accepts that this amounted to an intrusion upon the applicant's privacy. As regards the retention of the cellular material and the subsequently compiled DNA profile, the Court observes that the former Commission held that fingerprints did not contain any subjective appreciations which might need refuting, and concluded that the retention of that material did not constitute an interference with private life (see Kinnunen v. Finland, no. 24950/94, Commission decision of 15 May 1996). While a similar reasoning may currently also apply to the retention of cellular material and DNA profiles, the Court nevertheless considers that, given the use to which cellular material in particular could conceivably be put in the future, the systematic retention of that material goes beyond the scope of neutral identifying features such as fingerprints, and is sufficiently intrusive to constitute an interference with the right to respect for private life set out in Article 8 § 1 of the Convention.

The Court next reiterates that, according to its settled case law, the expression ‘in accordance with the law’ not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects. A rule is ‘foreseeable’ if it is formulated with sufficient precision to enable any individual — if need be with appropriate advice — to regulate his conduct (see, inter alia, Rotaru v. Romania [GC], no. 28341/95, §§ 52 and 55).

It is true that at the time the applicant committed the offences of which he was convicted, the DNA Testing (Convicted Persons) Act had not yet entered into force. Nevertheless, there is no suggestion that the criminal law provisions which were in force at that time were not sufficiently clear for the applicant to be aware that the acts he was committing constituted criminal offences and to enable him to regulate his conduct. By the time the interference with the applicant's right to respect for his private life took place, the Act had entered into force, and the measure in question is set out in clear terms under the Act. The Court is therefore satisfied that the impugned measure was ‘in accordance with the law’.

The Court further has no difficulty in accepting that the compilation and retention of a DNA profile served the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. This is not altered by the fact that DNA played no role in the investigation and trial of the offences committed by the applicant. The Court does not consider it unreasonable for the obligation to undergo DNA testing to be imposed on all persons who have been convicted of offences of a certain seriousness. Neither is it unreasonable for any exceptions to the general rule which are nevertheless perceived as necessary to be phrased as narrowly as possible in order to avoid uncertainty.

Finally, the Court is of the view that the measures can be said to be ‘necessary in a democratic society’. In this context it notes in the first place that there can be no doubt about the substantial contribution which DNA records have made to law enforcement in recent years. Secondly, it is to be noted that while the interference at issue was relatively slight, the applicant may also reap a certain benefit from the inclusion of his DNA profile in the national database in that he may thereby be rapidly eliminated from the list of persons suspected of crimes in the investigation of which material containing DNA has been found.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Finally, the applicant complained that the measure at issue constituted discrimination in that there was no good reason why he should be treated differently from other persons in the Netherlands who were not obliged to have their DNA profile determined and included in a national database. He invoked Article 14 of the Convention, which provision reads as follows:

The Court reiterates that, for the purposes of Article 14, a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, i.e. if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X).

The Court observes that it does not appear that the applicant was treated any differently from other persons convicted of an offence carrying a statutory maximum prison sentence of at least four years and deprived of their liberty in connection with that conviction at the time the Act entered into force.

Even if it were accepted that the applicant's situation was analogous or relevantly similar to that of persons who do not have to undergo DNA testing, and that the different treatment to which he was subjected was based on the fact that he was a convicted person, the Court is of the opinion that the difference of treatment at issue was justified. In this context it has regard to the aim of the DNA testing of a specific category of convicted persons, as described above (see Relevant domestic law).

It follows that this complaint is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Declares the application inadmissible.

Vincent BERGER

Registrar

Boštjan M. ZUPANČIČ

President