G.T.V.B. v. The Netherlands

The author of the communication is G.T.V.B.,³ a national of the Netherlands, born in Utrecht on 13 August 2003. He claims to be a victim of the violations by the Netherlands of his rights under articles 14 (4) and 17 of the Covenant, as a juvenile person convicted of criminal offences, as he was subjected to mandatory taking of tissue samples for the determination and processing of his DNA profile. The Optional Protocol entered into force for the State Party on 11 March 1979. The author is represented by counsel.

3. Since the author was a minor at the time of submission, his identity is anonymized. ↩

On 4 April 2018, the author, who was 14-year-old at the time, was convicted of theft on two counts by the juvenile court judge of the Central-Netherlands District Court in Utrecht. He was ordered to carry out 40 hours of community service, of which 20 hours were suspended for execution for a probation period of two years.

On 12 July 2018, the public prosecutor issued an order to collect cellular (biological) material from the author, based on the DNA Testing (Convicted Persons) Act. This order was executed on 16 August 2018 by the Utrecht Police, by taking tissue sample from the author.

On 17 August 2018, the author filed an objection (appeal) against the determination and processing of his DNA profile in the DNA database. On 22 October 2018, the juvenile court issued a decision dismissing the author’s objection as unfounded. The court ruled that the author’s case should not fall under section (2) (1) (a) or (b) of the DNA Testing Act, which provides for exceptions from the DNA collection procedure if it can be reasonably assumed that keeping a DNA profile of the individual cannot be of any significance in the “prevention, investigation, prosecution, and trial of criminal offences committed by the convicted person, taking into account the nature of the crime and the circumstances of its perpetration”.

On 20 December 2018, the author filed a claim for compensation through a letter addressed to the Minister of Justice and Security. The author’s compensation claim was examined on substance, but was rejected on 30 July 2019, as the Minister found no reason to acknowledge liability. The Ministry of Justice and Security claimed that there was a legislative proposal to amend the DNA Testing Act excluding minors from its personal scope, if they have been sentenced to community service for up to 40 hours. Based on the legislative proposal, in those cases where the individual would be sentenced to 40 hours of community service or more, thereby involving more serious offences, the collection of cellular material would remain permissible and proportionate to the pursued aims. The author added that as he had been sentenced to 40 hours of community service, he does not fall under the exempted category even under the intended legislative amendment. The Ministry disregarded the author’s argument in this regard, claiming that only 20 hours of his community service is enforceable whereas the rest have been suspended for a probation period. For these reasons, the Ministry of Justice could not conclude that there had been a wrongful act on the part of the authorities, which could have served as a basis for compensation.

The author claims that he has exhausted all available domestic remedies; no appeal against the decision of the council of judges of the Central-Netherlands district court of 22 October 2018 is permissible. The same matter has not been submitted to another procedure of international investigation or settlement.

The author claims a violation of his rights under articles 14 (4) and 17 of the Covenant. He asserts that article 2 of the DNA (Convicted Persons) Testing Act, as stipulated at the time of the complaint, leaves no discretion to the public prosecutor to decide whether it is necessary to collect cell material from an individual once the legal preconditions are met. The public prosecutor is obliged to take cell material, without any room for balancing of interests, such as the age of the convicted person. The law is hence not in compliance with the Committee’s Views in N.K. v. the Netherlands.⁴ In the Views, the Committee held that the State must indeed distinguish between adults and minors, in view of the psychological development and emotional and educational needs of the minors, which was not observed in the present case.

4. CCPR/C/120/D/2326/2013/Rev.1 ↩

The author adds that given his young age, the limited seriousness of the offences committed, and a mild sentence imposed, as half of the community service was suspended, it was not necessary to collect cell material from him for the purpose of determining and processing his DNA profile. Even though there is a legislative amendment proposed by the State Party to comply with the Committee’s views,⁵ it is not known when it is going to take effect. In that respect, the author underlines that should he reach the age of majority by that time, his cell material and DNA profile will not be stored “only” for 10-15 years, as foreseen by the legislative amendment,⁶ but for 20-30 years as based on the preceding regulations, which exacerbates the violation of his rights. The pending legislative amendment should have also led the district court to declare well-founded the author’s objection to the mandatory DNA testing, considering the author’s age. The interests of the author as a minor should have been the first consideration for the juvenile court.

5. A reference was made to the letter from the Minister of Justice and Security of 3 April 2018, from which it appears that the Views in N.K. v. the Netherlands (CCPR/C/120/D/2326/2013/Rev.1) and S.L. v. the Netherlands (CCPR/C/120/D/2362/2014) provided the Government with the reason to amend the Act. The author also alleged that the Government no longer supports the compulsory collection of cellular material from minors in case of a sentence to 40 hours of community work (rather of up to 40 hours of community work). While the author was sentenced to 40 hours of community work, with a half of the sentence conditionally suspended, the unconditional part of the community service was only 20 hours. ↩
6. As articulated by the Ministry of Justice and Security in its letter of 30 July 2019, in the context of the intended legislative amendment, which stated that the new halved objection period would also apply to the convicts, whose cell material and DNA profile were already stored in the DNA database, but who were still minors at the moment when the amendment would enter into force. ↩

The author further claims that the interference in his private life, in violation of article 17 of the Covenant, was not proportionate to the purpose of DNA collection, i.e. the prevention and investigation of serious criminal offences. As a remedy, the author requested restoration of his rights, including adequate compensation.

On 11 December 2020, the State Party submitted its observations on admissibility and the merits. It argued that the communication should be considered inadmissible, or without merit.

The State Party started by recalling the facts and indicated that the juvenile judge at the Central Netherlands District Court (Utrecht) convicted the author, by its judgment of 4 April 2018, of burglary and theft. The author was sentenced to 40 hours of community service (or 20 days youth detention), of which 20 hours (or 10 days youth detention) were suspended with a probation period of two years. The author did not lodge an appeal against this judgment.

As a result of the judgment of 4 April 2018, the Public Prosecution Service ordered on 12 July 2018 the author to provide cellular material.⁷ On 16 August 2018, cellular material was obtained by the police from the author, by means of a buccal swab, to determine his DNA profile and process it in the DNA database.

7. Under section 2, subsection 1 of the DNA Testing (Convicted Persons) Act. ↩

On 17 August 2018, the author filed an objection with the district court⁸ against the determining and processing of his DNA profile. The author’s counsel argued that the collection of cellular material from the author and the determining and processing of his DNA profile in the DNA database were not proportionate to the legitimate aim of the prevention and investigation of serious crimes. He referred to the Views of the Committee of 18 July 2017 in N.K. v. the Netherlands⁹ and S.L. v. the Netherlands¹⁰ and claimed that the collection of cellular material was not necessary given the author’s age, the offences committed, and the sentence imposed.

8. Pursuant to article 7 of the Act. ↩
9. CCPR/C/120/D/2326/2013/Rev.1 ↩
10. CCPR/C/120/D/2362/2014. ↩

The State Party further submitted that the public prosecutor informed the authorities that, in light of the developments regarding the collection of DNA from convicted minors, the Public Prosecution Service has drawn up guidelines, setting out that no DNA should be collected from minors sentenced to an alternative sanction of 40 hours or less.¹¹ This applies only in case of first-time offenders. The public prosecutor argued that in the present case, however, there was some form of recidivism, as the author had been sentenced for two separate offences: burglary and theft. Furthermore, he had been ordered to perform community service previously further to settlement penalty notices on 6 September 2016 and 4 January 2017, for multiple violations of articles 310 and 311 of the Criminal Code. The public prosecutor then argued that the author’s objection to the DNA testing order should be declared unfounded.

11. The assessment framework to which the public prosecutor is referring was not developed until after the Supreme Court’s judgment of 7 April 2020 (the limit of the number of hours of the alternative sanction is up to and including 39 hours, rather than 40 or less like the public prosecutor stated). ↩

On 22 October 2018, the district court declared the author’s objection unfounded, finding that the aim of the Act is to enable the efficient investigation of any criminal offence that the convicted person has committed or may commit in the future. The court held that the basic principle is that cellular material should be collected from every convicted person as referred to in section 2, subsection 1 of the Act. The public prosecutor is obliged to issue an order to that end unless one of the exceptions listed in subsection 1 applies. The district court held that there is no place in the Act for a further weighing of interests.

The district court nevertheless took into consideration the counsel’s argument that taking cellular material and determining the author’s DNA profile was not proportionate given his young age. However, the district court saw no reason to rule that the collection of DNA was not justified, attaching importance to the fact that the author was not a first-time offender. The conviction of 4 April 2018 related to two offences, and the author had committed two similar property offences in 2016 and 2017. The court found that this underlined the necessity of protecting the public interest. No appeal against the court’s judgment was possible.

As concerns the claim for compensation for unlawful government action, which was submitted by the author on 20 December 2018,¹² the Minister of Justice and Security informed the author by letter of 30 July 2019 that he saw no reason to acknowledge responsibility nor award compensation. In the Minister’s view, the mere collection of a DNA material based on the Act was not unlawful. Furthermore, the interference with the author’s privacy was proportionate to the legitimate purpose of the prevention of criminal offences and the investigation, prosecution and trial of suspects. The Minister noted that the author had been sentenced to an alternative sanction of 40 hours and that his case would therefore not be among those in which cellular material would no longer be collected under the amended legislation. Finally, the Minister noted that the new, halved retention period will also apply to convicted persons whose cellular material and DNA profile have already been stored in the database, but who are still minors when the amendment enters into force.

12. The author’s claim was addressed to the Ministry of Foreign Affairs, which forwarded it to the Ministry of Justice and Security. ↩

The State Party also elaborated on the applicable law and policy. The legislative basis for the collection of cellular material for the purpose of determining and processing DNA profiles of persons convicted of certain offences is the DNA Testing (Convicted Persons) Act, the DNA Testing (Criminal Cases) Decree and the DNA Testing (Criminal Cases) Order. By judgment of 4 April 2018, the author was convicted for offences, which carry a penalty of four years’ imprisonment or more; the penalty of 40 hours of community service was imposed on him. Section 2, subsection 1 of the Act provides the legislative basis for the public prosecutor to order cellular material to be collected. Section 2, subsection 6 of the Act states that DNA profiles may be processed only in the interests of the prevention, investigation, prosecution and trial of criminal offences.¹³ The DNA Testing (Criminal Cases) Decree also contains rules on the destruction of cellular material and DNA profiles.

13. Further rules on the processing of DNA profiles and cellular material are laid down in the DNA Testing (Criminal Cases) Decree, including the possibility of the convicted person to raise objection to the collection of tissue samples. The DNA Testing Decree also contains rules on the destruction of cellular material and DNA profiles. Article 18 of the Decree sets the time limits for the destruction of DNA profiles of suspects and convicted persons. The retention periods at the time were 20, 30 and 80 years. Based on article 17 of the Code of Criminal Procedure, the Netherlands Forensic Institute must destroy the DNA profile from the DNA database of the person who can no longer be regarded as a suspect in relation to an offence as defined in article 67 (1) of the Code of Criminal Procedure. The Institute must also destroy the related particulars, the tissue sample from which the DNA profile was obtained, and the copy of the report. ↩

In addition, the State Party referred to the announced amendments to legislation. The Committee’s Views of 18 July 2017 prompted the Government to reassess the rules. By letter to parliament of 3 April 2018, the Minister of Justice and Security informed the House of Representatives of two planned changes concerning the mandatory collection of cellular material from convicted minors for DNA testing and the processing of their DNA profiles. First, the material will no longer be taken from minors sentenced to an alternative sanction of less than 40 hours (up to and including 39 hours). A minor may be sentenced to an alternative sanction of 40 hours or more for serious offences. In those circumstances, it is proportionate for cellular material to be collected from minors and for the resulting DNA profile to be stored in the DNA database, regardless of whether all or part the community service order was suspended. The Minister’s letter announced that the question of whether the amended legislation should distinguish between first-time offenders and habitual offenders would be examined. Second, the retention periods for biometric, judicial and criminal case data of minors will be halved. As indicated by the Minister, this would fulfil the purpose of storing this data, i.e. helping to clear up future and past offences committed by these minors and changing their behaviour by deterring them from committing further crimes. The proposed amendments will consider the special position of minors and make the applicable legislation more proportionate.

The State Party further referred to the national case law, including the judgment of the Supreme Court of 13 May 2008 on the collection of DNA from convicted minors under the DNA Testing (Convicted Persons) Act,¹⁴ with reference to the Convention on the Rights of the Child. On 7 April 2020, the Supreme Court issued a cassation judgment on the collection of DNA from convicted minors under the Act, in the interests of the uniform application of the law.¹⁵ The Supreme Court cited and upheld the judgment of 13 May 2008. It added that while the Act does not distinguish between adults and minors, the Supreme Court held that the fact that a convicted person was a minor should be considered when assessing whether special circumstances exist. Other relevant factors can also be weighed in, such as whether the determining and processing of the DNA profile is evidently disproportionate given the minority of the offender at the time of committing the offence; whether the risk of recidivism is small; the age of the convicted person at the time of committing the offence; or the existence of previously committed relevant offences. The Supreme Court upheld that the young age of a convicted person and the fact that he is a first-time offender do not in themselves warrant the conclusion that DNA testing is not justified in this case. These findings did not err in law. In so far as the appeal departs from this, it fails.

14. Supreme Court LJN: BS 8231 and BC 8234. ↩
15. Supreme Court, 7 April 2020, ECLI:NL:HR:2020:626. The Advocate General stated two reasons for filing an appeal in cassation: First, that the case law on notices of objection against the determination and processing of the DNA profile of convicted minors remained strongly divided. Second, the appeal in cassation was prompted by the two Views of the Committee, adopted after the judgment of the Supreme Court of 13 May 2008, which raise the question whether the Supreme Court’s judgment should be re-examined. In essence, the appeal in cassation raised the issue of whether the convicted person’s minority at the time of commission of a criminal offence should be considered in assessing whether an exception stipulated in section 2, subsection 1 (b), of the Act applies, i.e. whether it can reasonably be supposed that the determination and processing of the DNA profile, given the special circumstances in which the offence was committed, cannot be relevant to the prevention, investigation, prosecution and trial of criminal offences committed by the convicted person. ↩

In response to the Supreme Court’s judgment of 7 April 2020, the Public Prosecution Service established an internal assessment framework for its forensic officers who assess whether to issue an order to collect cellular material on the grounds of the Act. Accordingly, the forensic officers, in assessing the special circumstances applicable to minors, always take account of the minors’ age. The assessment is done in two steps. The first step involves that an order pursuant to the Act is not issued if this is deemed to be evidently disproportionate. In principle, this is the case if a community service order or training order is imposed of less than 40 hours (up to 39 hours; regardless of whether all or part of the sentence is suspended). Exceptions can be made. The second step involves assessing the risk of recidivism in conjunction with other circumstances, such as the type of sentence and its severity, the type of offence, and the convicted person’s age. If the risk of recidivism is small, the forensic officer may decide not to issue a DNA-testing order.

As regards the admissibility, the State Party argued that the communication is inadmissible because it is manifestly ill-founded. Regarding the author’s claims under article 17 of the Covenant, the State Party submitted that the provision does not guarantee an absolute protection of everyone’s rights to privacy, honour and reputation from arbitrary or unlawful interference and attacks. Although collecting and storing cellular material and determining and processing DNA profiles both constitute interferences with the exercise of the right to privacy,¹⁶ as also stipulated in the Committee’s jurisprudence,¹⁷ such interferences are permitted if they are provided for by or pursuant to the law, serve a legitimate aim and are necessary and proportionate.¹⁸

16. ECtHR (decision of 7 December 2006), Van der Velden v. the Netherlands (application no. 29514/05) and ECtHR (Grand Chamber judgment of 4 December 2008), and S. and Marper v. the United Kingdom (application nos. 30562/04 and 30566/04). ↩
17. The Committee’s Views in 2362/2014, para. 10.3, and in 2326/2013/Rev.1, para. 9.3, with reference to Van der Velden v. the Netherlands (application no. 29514/05), ECtHR (Grand Chamber) judgment of 4 December 2008, and S. and Marper v. the United Kingdom (application nos. 30562/04 and 30566/04). ↩
18. Ibid. See also N.K. v. the Netherlands. ↩

The State Party submits that the interference was provided for by law,¹⁹ namely the Act, which forms the statutory basis for an interference with physical integrity and privacy. The author does not dispute the lawfulness of such interference. The author was sentenced to 40 hours of community service; hence the interference would still have been lawful under domestic law, including under the new rules (paras. 4.5, 4.11 and 4.13 above). In the present case, the Public Prosecution Service and the district court considered the risk of recidivism and previously committed relevant offences, in accordance with the Supreme Court’s judgment of 7 April 2020. The interference also served a legitimate aim as the objective of the Act is to assist in the prevention, investigation, prosecution and trial of criminal offences committed by convicted persons.²⁰ The DNA records have made substantial contribution to the investigation of criminal offences in recent years, in line with the case law of the European Court of Human Rights,²¹ and it also serves to protect the rights and freedoms of others, such as the victims of serious violent and sexual offences. The collection of DNA material under the Act serves a legitimate aim and is an appropriate measure for achieving this aim. The author does not dispute this. The State Party also submits that the European Court of Human Rights and the Committee came to different interpretation of respective international frameworks regarding the collection of DNA from convicted minors on the grounds of the Act,²² and concludes that the interference in the present case was necessary and proportionate.

19. Human Rights Committee’s general comment no. 16: Article 17 (Right to Privacy). ↩
20. Section 2, subsection 6 of the Act. ↩
21. S. and Marper v. the United Kingdom (application nos. 30562/04 and 30566/04), para. 48. ↩
22. The European Court of Human Rights in Van der Velden v. the Netherlands (application no. 29514/05) ruled in general that the Dutch legislation on testing the DNA of convicted people meets the requirements set out in article 8 of the European Convention on Human Rights. In 2009, in W. v. the Netherlands (application no. 20689/08), the ECtHR declared the application of a minor who had objected to the processing of his cellular material invoking inter alia article 8 of the ECHR inadmissible. On the other hand, the Committee came in its Views in S.L. v. the Netherlands and N.K. v. the Netherlands to a different conclusion than the ECtHR did in W. v. the Netherlands. The Committee found that, although lawful under domestic law, the interferences in the authors’ privacy were not proportionate to the legitimate aim of prevention and investigation of serious crimes. ↩

As regards safeguarding necessity and proportionality in domestic law and policy, the State Party recalled that in response to the Views, the Minister of Justice and Security announced an amendment to legislation to make domestic law on the mandatory collection of cellular material for DNA testing more proportionate in regard to minors and to reflect the findings of the Committee. Its Views also contributed to the development of the Supreme Court’s case law based on which the district courts must take into account the circumstance that the convicted person was a minor at the time of committing the offence. In the Supreme Court’s view, a relevant factor in this regard may be whether the determination and processing of the DNA profile is evidently disproportionate. Moreover, following the cassation judgment of the Supreme Court, weighing minority is in fact now a requirement. However, the minority is not a decisive factor in all cases. As in the present case, other considerations may be decisive in the assessment of whether a DNA testing order is justified.

The State Party further asserts that the interests of the author were sufficiently taken into consideration. DNA collection involves a very minor interference with personal integrity. Cells are obtained from the inside of the cheek using a buccal swab. This measure is useful and effective in the investigation of criminal offences and the individual concerned suffers no adverse consequences from the method used as long as they have not committed and do not commit any other criminal offences. Moreover, both the cellular material and the DNA profile are codified and stored anonymously. Such interference was therefore necessary and proportionate, bearing in mind the relevant safeguards enjoyed by the author. The State Party concludes that there has been no violation of article 17 of the Covenant.

As regards the author’s claims under article 14 (4), the Covenant requires that in the case of juvenile persons, procedures should take account of their age and the desirability of promoting their rehabilitation. As reflected in the Committee’s jurisprudence, juveniles need special protection and States should take measures to establish an appropriate juvenile criminal justice system, to ensure that juveniles are treated in a manner commensurate with their age.²³ In regard to article 14 (4), the author claimed that the State Party did not comply with its obligation to distinguish between adults and minors, in view of the psychological development and emotional and educational needs of minors.

23. Human Rights Committee, general comment No. 32: Article 14, paras. 42 and 43. ↩

The State Party points out that the Act does not make a general distinction between juveniles and adults. In its view, it would not be in the interests of children to make an exception in the Act for minors, nor can such an exception be derived from the Convention on the Rights of the Child.²⁴ Nevertheless, the legislation provides for the public prosecutor to weigh the interests involved before ordering cellular material to be collected for DNA testing. In the present case, the author’s young age was addressed in the domestic proceedings, but this circumstance was not found to be decisive by the court; adequate weight was attached to the circumstance that the author was not a first-time offender and had previously committed similar offences. The State Party holds that sufficient consideration was given to the interests of the author and there is no reason to conclude that article 14 (4) of the Covenant was violated.

24. Supreme Court, 13 May 2008, LJN: BC8231. ECLI: NL:HR:2008:BC8231. ↩

On 26 March 2021, the author submitted his comments on the State Party’s observations.

The author alleges that the so-called assessment framework by the Public Prosecution Service, to determine of which minors cellular material is collected for establishing and processing a DNA profile, has not been publicly available; as the author is not aware of these guidelines, he cannot comment on their content. The Committee might request the State Party to make the guidelines available for the author to respond to them.

As for the legislative amendments mentioned in the letter of the Minister of Justice and Security of 30 July 2019, the State Party fails to acknowledge that it will take years for the new act to take effect. Three years have passed since the announcement of the Minister’s intended legislative change of 3 April 2018 and there is still no prospect for the entry of the new act in force. Since the author was 17 years old at that time, he will become an adult by the time the new act eventually enters into force. The retention period of his DNA profile that is stored in the DNA database will therefore not be halved.

The author further contests that he was sentenced to community service of 40 hours as a convict for a serious offence. The relevant guidelines used by the Public Prosecution Service and the juvenile court show that a distinction cannot be automatically made between minors for allegedly serious punishable acts based on the number of hours of community service, as demonstrated by a comparison of the differing number of hours of community service that can be handed for individual crimes. No distinction between minors for allegedly more serious offences can be made based on the imposition of a community service order of 39 or 40 hours, pointing also to the practice of rounding off hours of community service. In that context, the author questions whether after the intended legislative amendment the limit of 40 hours will be used to demarcate the more serious offences from the minor offences. The author also notes the disparity between minors and adults, since minors are more likely to receive an order for community service for educational considerations (re-education, resocialisation and reintegration) than a fine, which implies that minors must provide cellular material more often than adults and results in disparate DNA testing. When a fine is imposed, the court does not impose in parallel an order for the collection of cellular material.²⁵

25. A reference was made to the Supreme Court judgment no. ECLI:NL:PHR:2020:162, p. 9 in 5.9.2. ↩

Referring again to the assessment framework by the Public Prosecution Service, the author claims as regards the counting of hours of community service up to 40 hours that, regardless of whether a part of the hours is imposed as a suspended sentence, the Minister in his letter of 3 April 2018 did not mention anything about suspended sentences. Due to the creation of the limit of 40 hours of community service, there is a predetermined criterion which applies automatically. It means that the Committee’s Views of 18 July 2017 in the cases of N.K. v. the Netherlands and S.L. v. the Netherlands are insufficiently observed and implemented. Based on the guidelines, there is no individual balancing of interests in the decision to collect cellular material from minors.²⁶ The State also fails to admit that when a court imposes an order of community service for over 40 hours on a minor, an order to collect cellular material from a minor cannot be proportionate, considering all circumstances of a specific case. In such cases, an order to collect cellular material will follow automatically when applying the current Public Prosecution Service guidelines.

26. Ibid., p. 16 in 11.3. ↩

The author also objected to the stated purpose and benefit of determining and processing DNA profiles in the DNA database, as not entailing negative consequences for sentenced persons if they refrain from committing new offences, and as the cellular material and the DNA profile are stored anonymously. He claims that the collection of cellular material and establishing and processing a DNA profile is done by individuals who can make mistakes. When tissue sample is collected, the cellular material can inadvertently be mixed with other cellular material, be stored under a wrong reference and even result in a false positive match. He referred to the mistakes made by the Netherlands Forensic Institute between 1997 and 2010, which have been under the independent investigation launched by the Minister of Justice and Security in 2011. In 2010, a mistake was made in 1.3 per cent of the cases. In addition, the State disregards that when included in the DNA database, a minor is labelled as a potential recidivist of serious crimes, which may have a negative effect on their development, contrary to the educational nature of juvenile criminal justice. Furthermore, an investigation has revealed that encountering the criminal justice system, and the way in which this takes place, influences a minor’s future conduct. It could be a criminogenic factor which may lead to recidivism. The same applies to the storing of minors’ DNA profiles. Collecting DNA profiles of minors does not have a deterrent or rehabilitative effect but instead encourages recidivism and has a negative effect on the minor’s further course of life.²⁷

27. Judgment no. ECLI:NL:PHR:2020:162, p. 10 and 11 in 7.2. ff. ↩

The author further objects that the possibility of a sentenced person to submit a notice of objection would represent a key procedural safeguard. It is not possible to object to the collection of cellular material under the current legislation and regulations. It is only possible to file a notice of objection against the determination and processing of a DNA profile in the DNA database. The consequence is that the juvenile court judge decides if this entails a lawful interference in the privacy of the minor at a time when the interference through the collection has already taken place. This is contrary to article 17 of the Covenant. In the author’s view, it is necessary for the legal protection of minors that the objection procedure is changed. The author believes that a public prosecutor must first determine, based on individual weighing of interests, whether an order to collect cellular material is issued. If the weighing of interests leads to the conclusion that cellular material must be collected, the minor and their parents/legal guardians should receive a decision from the public prosecutor. The minor should then have the option to file a notice of objection with the juvenile court judge of the district court. The juvenile court judge would then decide if establishing and processing the DNA profile and its storing in the DNA database are justified. If the notice of objection were declared unfounded, or if the sentenced minor has not used the option to file a notice of objection within stipulated time, the minor and his/her parents/legal guardians would receive an order for the collection of cellular material, announcing the date, time and place where the minor and their parents/legal guardians must report for the collection of cellular material. The author is of the opinion that a juvenile court judge must first consider the case before any cellular material is collected.

In conclusion, the author submits that the interference in his privacy was not proportionate, given the purpose of the law, and that insufficient attention was paid to his interests as a minor, considering his age, the nature and severity of the offences for which he was convicted, the sentence imposed by the juvenile court judge, his judicial records and the risk of recidivism.

The author finally articulated the means of a remedy, including financial compensation for the fact that his interests as a minor were not the first concern for the State Party. His interests as a child were not sufficiently taken into account and his DNA profile was recorded in the database for a long time. He also requests that his DNA profile be removed from the DNA database, and a pledge be made by the State that its authorities will not issue again an order to take cell material for any other matters for which the author may possibly been sentenced in the meantime. In addition, the author requests a compensation for the costs of his legal assistance.²⁸ While the Optional Protocol does not provide for a compulsory enquiry about an amicable settlement, the author suggests that he is in principle willing to reach such a settlement, expecting the State Party to make a corresponding proposal to him.

28. Although the author’s legal assistance in the present case is financed by the State, he had to contribute 196 EUR for the assignment of a lawyer. ↩

Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the State Party’s argument that the author has not sufficiently substantiated his claims under articles 14 (4) and 17. In view of the information provided by the author, the Committee considers that the author has sufficiently substantiated his claims for the purposes of admissibility. It therefore declares the claims under articles 14 (4) and 17 of the Covenant admissible and proceeds to their consideration on the merits.

The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes the author’s claim that the fact he was subjected as a convicted minor to mandatory determination and processing of his DNA profile, including the storage of the information in the DNA database for an extensive period, constituted arbitrary interference in his private life, in violation of his rights under article 17 of the Covenant. He claims, in particular, that neither his age (he was 14 at the time of the offence) nor the nature of the crimes for which he was convicted were adequately taken into account by the public prosecutor when ordering DNA testing; that the orders for the DNA testing are issued automatically, without an assessment of the individual circumstances of a convicted person (paras. 3.1-3.2 and 5.5); and that the scope for filing an objection against the order to the district court does not include the actual taking of the cellular material, but only the determination and processing of a DNA profile (paras. 3.3 and 5.7). The Committee also notes the author’s claims that the collection of cell material from him for DNA testing was not necessary and proportionate; that the juvenile court did not adequately consider his interests as a child; and that the legislative amendments, proposed by the State Party to comply with the Committee’s views of 18 July 2017 in N.K. v. the Netherlands and S.L. v. the Netherlands, have not entered into force to positively impact the author’s situation, and the excessive period for storing his DNA profile would not be halved as contemplated by the legislative amendments.

The Committee considers that the collection of cellular material for DNA testing for the purpose of analysing and storing the collected material in a database that could be used in the future for the purposes of criminal investigation is sufficiently intrusive as to constitute “interference” with the author’s privacy under article 17 of the Covenant.²⁹ The issue that arises is whether such interference was arbitrary or unlawful under article 17 of the Covenant.

29. See N.K. v. the Netherlands (CCPR/C/120/D/2326/2013/Rev.1), para. 9.3, wherein the Committee concurred with the following analysis by the European Court of Human Rights in the case of S. and Marper v. the United Kingdom, judgment of 4 December 2008, para. 72–73. ↩

The Committee notes the State Party’s argument that taking cellular material for DNA determination, processing and storing as regulated by the DNA Testing (Convicted Persons) Act serves a legitimate purpose, namely, the investigation, prosecution and trial of serious criminal offences and the protection of the rights of others, including potential victims of violent or sexual crimes. Such testing is lawful, necessary and proportional, given that it ensures minimal interference as the tissue sample is taken in the least invasive way; the sample is stored anonymously for a limited period of time; the procedure is limited to persons convicted for crimes of a certain gravity; and it is necessary in a democratic society, given the absence of another equally effective tool in preventing future crimes and investigating crimes already committed. The State Party added that the Minister of Justice and Security announced on 3 April 2018 legislative amendments to the Act, which have been pending. The amendments aimed 1) to exempt from DNA testing minors convicted of criminal offences when the imposed penalty consisted of up to 39 hours of community service, and 2) to halve the retention period of DNA profiles in the DNA database, foreseen to apply even to the juvenile offenders who were already convicted by the time of adoption of the legislative amendments (para. 4.11).³⁰

30. No information has been available as to whether the legislative amendments have been adopted, or what is their current status. See e.g. the Concluding observations of the Committee on the Rights of the Child (CRC/C/NLD/CO/5-6) of 2022, paras. 40 (g) and 41 (h). ↩

The Committee recalls that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and reasonable in the particular circumstance.³¹ The notion of arbitrariness includes elements of inappropriateness, injustice, lack of predictability and due process of the law,³² as well as elements of reasonableness, necessity and proportionality.³³ Even though, in society, the protection of privacy is necessarily relative, the competent public authorities should only be able to obtain information relating to an individual’s private life if such information is essential in the interest of society, as understood under the Covenant.³⁴ Even with regard to interference that is in conformity with the Covenant, relevant legislation must specify in detail the precise circumstances in which such interference may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law and on a case-by-case basis.³⁵

31. See the Committee’s general comment No. 16, para. 4; Huyen Thu Thi Tran v. Australia (CCPR/C/143/D/3665/2019), para. 10.10, Tatiana Kisileva v. Sweden (CCPR/C/140/D/3245/2018), para. 7.3, and N.K. v. the Netherlands, para. 9.5. See also S. and Marper v. the United Kingdom, para. 107, in which the Court stated that: “… The core principles of data protection require the retention of data to be proportionate in relation to the purpose of collection and insist on limited periods of storage.”. ↩
32. See, inter alia, the Committee’s general comment No. 35 (2014) on liberty and security of person, para. 12, N.K. v. the Netherlands, para. 9.5, Ilyasov v. Kazakhstan (CCPR/C/111/D/2009/2010), para. 7.4, and D.T. and A.A. v. Canada (CCPR/C/117/D/2081/2011), para. 7.6. ↩
33. See also S.L. v. the Netherlands (CCPR/C/120/D/2362/2014), para. 10.5, and D.T. and A.A. v. Canada, para. 7.6. ↩
34. See the Committee’s general comment No. 16, para. 7. See also N.K. v. the Netherlands, para. 9.5, and S.L. v. the Netherlands, para. 10.5. ↩
35. Committee’s general comment No. 16, para. 8. See also N.K. v. the Netherlands, para. 9.5, and S.L. v. the Netherlands, para. 10.5. ↩

In the present case, the Committee notes that, on 4 April 2018, the author was sentenced, as a minor of 14 years, to 40 hours of community service for the acts of robbery and theft, while half of the community service (20 hours) was conditionally suspended. On 12 July 2018, the district public prosecutor ordered that the author be subjected to mandatory taking of cellular material and the tissue sample was taken by the police on 16 August 2018 (paras. 2.2 and 4.3). While the State Party has provided explanations as to the content and general application of the DNA Testing Act, it has also indicated that both the public prosecutor and the juvenile district court held it necessary and proportionate, in the light of the State Party’s stated legitimate aim, in order to prevent criminal offences and to investigate, try and punish the criminal offenders. The Committee in particular notes the State Party’s argument that the author’s young age was properly assessed in the domestic proceedings, but this circumstance was not found to be decisive by the court; adequate weight was attached to the circumstance that the author was not a first-time offender and had previously committed similar offences (perceived recidivism); and that sufficient consideration was given to the interests of the author as a minor (para. 4.18).

The Committee notes the author’s statement that, under the DNA Testing Act, DNA testing orders are issued automatically for persons who have been given a custodial sentence, juvenile detention order or alternative sanction of community service of 40 hours or more. The State Party has admitted that the Act only provides for limited weighing of interests by the public prosecutor before issuing the order for tissue sample collection. The Committee also notes that, even though exceptions to DNA testing do exist under article 2 (1) (a) and (b) of the Act, they are very narrowly construed and do not include, for instance, consideration for the age of the offender, as acknowledged by the State Party. The State Party also admitted that the Act does not distinguish between adults and minors, and that article 2 (1) (b) of the Act applies only in exceptional cases.³⁶

36. For instance in cases, where it is actually impossible for the person to reoffend (such as owing to bodily injury). ↩

The Committee further observes that the author filed on 17 August 2018 a notice of objection against the prosecutor’s order, which was rejected by the juvenile district court on 22 October 2018. The court ruled that the order for mandatory testing was lawful and necessary, taking into account the legitimate aim, while admitting that taking cellular material and determining the author’s DNA profile was partly disproportionate, given the author’s young age (para. 4.7 above). In that regard, the Committee notes that the Act does not foresee a remedy against the collection of tissue sample, only against the determination and processing of a person’s DNA profile. The author therefore argued that a juvenile court judge must first consider the case before any cellular material is collected (para. 4.12 above). On the other hand, the State Party also argued that the author’s compensation claim, challenging the collection of a tissue sample on the grounds that, by obtaining a sample for the purpose of DNA testing, the State is committing an unlawful act, was rejected by the Minister of Justice and Security on 30 July 2019 (paras. 2.4 and 4.8 above). The Committee considers, in the circumstances of the present case, that such remedy has not been effective, taking into account that the collection of tissue sample is “lawful” under domestic law. The Committee also notes that there is no appeal available against a court decision rejecting the objection to the processing of a person’s DNA profile.

In addition, the Committee notes the State Party’s position that the tissue sample collection involves very minor interference with a person’s privacy because both the tissue sample and the DNA profile are codified and stored anonymously. However, the Committee also notes that the tissue sample and the profile are kept for 30 years in cases of serious offences, and 20 years in the case of less serious offences. The Committee observes that the State Party argued that the author has been convicted for serious offences, to which the author objected.

Finally, the Committee notes the State Party’s argument that the Act does not distinguish between children and adults because there is no reason to make a legal distinction between them for the purpose of preventing, investigating and prosecuting criminal offences and that the Act is not contrary to the best interest of the child. The Committee, however, considers that children differ from adults in their physical and psychological development, and their emotional and educational needs.³⁷ As provided, for example, in articles 24 and 14 (4) of the Covenant, State Parties have the obligation to take special measures of protection.³⁸ In particular, in all decisions taken within the context of the administration of juvenile justice, the best interest of the child should be a primary consideration.³⁹ Specific attention should be given to the need for the protection of children’s privacy at criminal trials.⁴⁰ As explained by the author, his age was not properly considered by the domestic authorities as the Act at that time did not consider young age as a special circumstance.

37. See Committee on the Rights of the Child, general comment No. 10 (2007) on children’s rights in juvenile justice, para. 10; and CRC/C/NLD/CO/4, paras. 58–59, in which the Committee expressed concern about DNA testing of children in conflict with the law and recommended that the State party eliminate the practice of DNA testing of children in conflict with the law and erase the criminal record of children who have been acquitted or have completed their sentence. ↩
38. See the Committee’s general comment No. 17 (1989) on the rights of the child, N.K. v. the Netherlands, para. 9.10, and S.L. v. the Netherlands, para. 10.10. See also Berezhnoy v. Russian Federation (CCPR/C/118/D/2107/2011), para. 9.7. ↩
39. See Committee on the Rights of the Child, general comment No. 10 (2007) on children’s rights in juvenile justice, para. 10. ↩
40. See S. and Marper v. the United Kingdom, para. 124. ↩

Accordingly, the Committee finds that, although lawful under domestic law, the interference with the author’s privacy, despite his perceived recidivism, was not proportionate to the legitimate aim of prevention and investigation of serious crimes, considering his very young age at the time of commission of criminal offences and the excessive period for storing his DNA profile, due to perceived serious nature of the offences committed. Therefore, the Committee concludes that such interference was arbitrary and in violation of article 17 of the Covenant.

Having concluded that, in the present case, there has been a violation of article 17 of the Covenant, the Committee decides not to separately examine the author’s claims under article 14 (4) of the Covenant, since the allegations made under article 14 (4) have been covered by the finding of a violation of article 17 of the Covenant.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State Party of the author’s rights under article 17 of the Covenant.

In accordance with article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide individuals whose Covenant rights have been violated with an effective remedy, in the form of full reparation. Accordingly, the State Party is obligated to provide the author with a) adequate compensation for the moral and material harm suffered, including reimbursement of any court fees and legal expenses he has incurred, and b) ensure a removal of the author’s DNA profile and related data from the national DNA database. The State Party is also under an obligation to take steps, including legislative and practical measures, to prevent similar violations from occurring in the future.

Bearing in mind that, by becoming a party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the language of the State Party.