THIRD SECTION

Application no. 11804/09 K. against the Netherlands lodged on 26 February 2009

STATEMENT OF FACTS

THE FACTS

1. The applicant, Mr K., is a Netherlands national who was born in 1991 and lives in Ermelo. He is represented before the Court by Mr J. Weldam , a lawyer practising in Utrecht .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

B. Domestic proceedings

3. On 7 March 2008 the Juvenile Judge ( kinderrechter ) dealing with criminal cases in the Utrecht Regional Court ( rechtbank ) found the applicant guilty of participating as principal in the second degree of several counts of indecent assault and of theft. The applicant was sentenced to a partially suspended term of 121 days of juvenile detention ( jeugddetentie ) .

4. In view of the applicant ’ s conviction of indecent assault, and pursuant to section 2(1) of the DNA Testing (Convicted Persons) Act ( Wet DNA- onderzoek bij veroordeelden ), the public prosecutor, on 9 June 2008, ordered that cellular material be taken from the applicant in order for his DNA profile to be determined.

5. The order was sent to the applicant, who was at that time staying in a juvenile institution ( justitiële jeugdinrichting ) . The applicant was provided with information, set out in the order itself, about the possibility of lodging an objection within fourteen days after the cellular material had been taken. Neither the applicant ’ s parents nor his lawyer were separately informed of the order given by the public prosecutor.

6. On 2 July 2008 a mouth swab was taken from the applicant by an officer invested with powers of investigation ( opsporingsambtenaar ). It appears from the official record ( proces-verbaal ) of the collection of DNA material, which was signed by the officer who had taken the mouth swab and another police officer as a witness, that the applicant did not object to the taking of the mouth swab by someone other than a medical professional (section 2(7) of the DNA (Criminal Cases) Test Decree ( Besluit DNA- onderzoek in strafzaken ), see below).

7. On 14 July 2008 the applicant – represented by his lawyer– lodged an objection ( bezwaarschrift ) pursuant to section 7(1) of the DNA Testing (Convicted Persons) Act (see below) against the decision to have his DNA profile determined and processed, i.e. entered in the national DNA database. He submitted that the taking of cellular material had not been in accordance with the law since he had not been provided with a document from which it appeared that the taking of cellular material had taken place in accordance with section 2 of the DNA (Criminal Cases) Test Decree in conjunction with section 2 of the DNA Testing (Convicted Persons) Act , in particular a document stating whether the cellular material had been taken by either a doctor or a nurse, or an officer invested with powers of investigation. If it turned out the mouth swab had not been taken by a doctor or a nurse, the applicant had not been made aware of this and had therefore been unable to object against such a course of action. He further submitted that the public prosecutor had wrongly considered that the exemption from the obligation to have cellular material taken as laid down in section 2(1)(b) of the Act did not apply to him. He argued that the nature of the offences of which he had been convicted as well as the circumstances under which they had been committed should have been taken into account, as should the fact that at the time he committed the offences – when he was fifteen years of age – he had been functioning at a mental age of eleven. In this respect he referred to a psychological report of 3 March 2008, which had been ordered by the investigating judge in the criminal proceedings against him, from which it appeared that the applicant was afflicted with limited intellectual capacities and an oppositional-rebellious behavioural disturbance. The report recommended that the applicant be found to have been in a state of diminished responsibility. The applicant further referred to an opinion of the Child Protection Board ( Raad voor de Kinderbescherming ) of 27 June 2007 from which it appeared – amongst other things – that a report by a juvenile care foundation had concluded that the applicant functioned at the mental age of eleven although he was actually fifteen. Furthermore he submitted that the taking of cellular material was in violation of Article 8 § 1 of the Convention and Articles 3 and 40 of the Convention on the Rights of the Child of 20 November 1989 (see below).

8. By decision of 28 October 2008 the Utrecht Regional Court dismissed the applicant ’ s objection. It rejected the complaint that the taking of cellular material pursuant to section 7(1) of the DNA Testing (Convicted Persons) Act had not been carried out in accordance with sections 2 and 3 of the Decree and section 2 of the Act. It found that, based on the official record drawn up, the cellular material had been taken by an officer invested with powers of investigation appointed by the public prosecutor. The complaint that the applicant ’ s lawyer had not been provided with a copy of the order as a result of which he had not been able to object against the taking of cellular material by someone other than a doctor or a nurse was without legal basis. Moreover the Regional Court found that the applicant had not substantiated what possible objection he would have had against the taking of cellular material by an officer invested with powers of investigation. The Regional Court further found that there were no exceptional circumstances to exempt the applicant from the obligation to have cellular material taken. It referred to a judgment of the Supreme Court ( Hoge Raad ) of 13 May 2008, Landelijk Jurisprudentie Nummer [National Jurisprudence Number, “LJN”] BC8231 (see below), from which it appeared that the exceptions provided for in the Act should be strictly interpreted. No general exclusion clause for minors could be derived from the Convention on the Rights of the Child.

9. No appeal or appeal on points of law lay against the decision of the Regional Court .

C. Information obtained from the Government

10. By letter of 27 March 2009 the respondent Government were requested under Rule 49 § 3 (a) of the Rules of Court to reply to the following questions :

“ 1. Are the parents/guardians and the lawyer, who represented the person concerned in the criminal proceedings, notified when an order pursuant to [section 2(1)] of the DNA Testing (Convicted Persons) Act ( Wet DNA- onderzoek bij veroordeelden ) is given to a minor?

2. If such notification is not provided for by law, has it been provided for in any other way – having regard to what was stated in a decision of the Amsterdam Regional Court of 14 February 2006 (LJN AV1664), namely that ‘ [it] has learned in the meantime that copies of the order are now provided to the parents and the lawyers ’ ? ”

11. On 8 May 2009 the Deputy Agent of the Government replied as follows:

“Dutch legislation does not require that a parent or guardian or a lawyer be notified when an order under section 2, subsection 1 of the DNA Testing (Convicted Persons) Act is given to a minor. However, current practice at a number of public prosecutor ’ s offices – including the one in Utrecht – is for the public prosecutor to notify the parents and the lawyer in the event that the minor is serving his sentence outside a custodial institution and that the prosecutor has ordered the minor to appear at a police station so that a tissue sample can be taken for DNA testing. In the present case the applicant ’ s parents and lawyer were not informed because the applicant was in an institution. It is usual in a case of this kind for a staff member of the institution to personally hand the public prosecutor ’ s order to the minor, at the same time giving the minor an information brochure that explains his rights and duties and if necessary discussing the brochure with him. The staff member also alerts the minor to the possibility of obtaining assistance from a lawyer should the minor wish to lodge an objection to the inclusion of the DNA profile obtained from the tissue sample in the DNA database for criminal cases. It is not advisable in these cases for the public prosecutor to inform the minor ’ s lawyer, because a lawyer cannot play any significant role with regard to the taking of the minor ’ s tissue sample; the DNA Testing (Convicted Persons) Act provides no opportunity to lodge an objection to this procedure, although an objection can be lodged to the inclusion of the DNA profile obtained from the tissue sample in the DNA database for criminal cases. This is why the public prosecutor did not directly inform the applicant ’ s parents and lawyer in the present case of his intention to have a DNA sample taken. Although the applicant ’ s interests were not prejudiced in the present case, the Board of Procurators General nonetheless intends to modify its internal instructions on implementing the DNA Testing (Convicted Persons) Act such that a minor ’ s parents and lawyer will always be informed of an order to take a DNA sample, even if the minor is in an institution.”

D. Subsequent events

12. On 9 June 2009, i.e. after the introduction of the present application, the Chief Public Prosecutor of Utrecht ( hoofdofficier van justitie ) wrote to the applicant ’ s parents admitting that the failure to inform them about the intention to take cellular material from the applicant in order to determine and store his DNA profile was contrary to the practice followed by the public prosecution service at the Regional Court of Utrecht. The Chief Public Prosecutor apologised for this omission. A copy of the letter was sent to the applicant ’ s lawyer.

E. Relevant domestic and international law and practice

1. Criminal law and procedure

13. The statutory maximum prison sentence for the offence of indecent assault (Article 246 of the Criminal Code, Wetboek van Strafrecht ) is eight years.

14. Article 504 § 1 of the Code of Criminal Procedure ( Wetboek van Strafvordering ; ‘ CCP ’ ) provides that summonses, notices or other written announcements relating to a minor suspect ( verdachte ) shall be brought to the attention of the parents and the lawyer.

2. The DNA Testing (Convicted Persons) Act

15. Provisions of the DNA Testing (Convicted Persons) Act relevant to the case in hand are the following:

Section 2

“The public prosecutor to the Regional Court which has given judgment at first instance, or the public prosecutor who has given the penal order ( strafbeschikking ) as the case may be, shall decide that cellular material shall be taken from any person convicted of a criminal offence ( misdrijf ) as referred to in Article 67 § 1 of the Code of Criminal Procedure [i.e. offences carrying a statutory maximum prison sentence of at least four years and specific other offences not relevant to the case] for the purpose of determining and processing his or her DNA profile, unless:

...

b. it can reasonably be assumed that in view of the nature of the offence or the specific circumstances in which the offence has been committed, determining and processing the DNA profile will be of no significance for preventing, detecting, prosecuting and trying criminal offences committed by the convict.”

16. Section 2(5) of the DNA Testing (Convicted Persons) Act provides that DNA profiles are only to be processed for the purpose of the prevention, detection, prosecution and trial of criminal offences. It further states that rules as to the processing of DNA profiles and cellular material are to be laid down by Order in Council ( algemene maatregel van bestuur ), after the Data Protection Agency ( College Bescherming Persoonsgegevens ) has given an opinion.

17. The person concerned may lodge an objection against the determination and processing of his or her DNA profile with the Regional Court within fourteen days after the sample has been taken or after he or she has been served with the notification that sufficient cellular material has been collected for a DNA profile to be determined and processed (section 7(1)). If it finds the objection well-founded, the Regional Court must order the immediate destruction of the cellular material (section 7(5)). As long as it is possible for the person concerned to lodge an objection, no use is made of the sample to determine a DNA profile (section 7(4)).

3. Delegated legislation

18. Rules under the DNA Testing (Convicted Persons) Act have been set out in the DNA (Criminal Cases) Test Decree . They determine how and by whom samples are to be taken; how they are to be kept, sealed and identified; how and by whom the DNA profile is to be drawn up; and which authorities are allowed to make use of the data stored in the DNA database. The Decree further lays down rules on how long a DNA profile and cellular material are to be stored.

19. Section 2 of the DNA (Criminal Cases) Test Decree is applicable when the person concerned consents to the taking of cellular material. In its relevant parts, it provides as follows:

“1. The person who is asked to consent in writing to the taking of cellular material for DNA testing may be assisted by counsel in taking his or her decision. The public prosecutor or the investigating judge, as the case may be, shall inform them of this possibility.

2. The consent form referred to in the first paragraph shall set out the consequences of co-operation in DNA testing.

3. The person who co-operates willingly to DNA testing may allow mouth swabs from the inside of the cheeks, blood or hair follicles to be taken for that purpose.

...

7. Mouth swabs, blood or hair follicles shall be taken by a physician or a nurse. If the person concerned gives separate consent, mouth swabs or hair follicles can be taken by an officer invested with investigative powers appointed by the public prosecutor who meets the requirements set out by ministerial regulation ( ministeriële regeling ).

... ”

4. The Constitution for the Kingdom of the Netherlands

20. Provisions of the Constitution for the Kingdom of the Netherlands ( Grondwet voor het Koninkrijk der Nederlanden ) relevant to the present case are the following:

Article 93

“Provisions of treaties and decisions of international organisations which in view of their content can be binding on everyone shall have binding force once they have been published.”

Article 94

“Legal prescriptions in force within the Kingdom shall not be applied if such application is incompatible with provisions of treaties and decisions of international organisations that are binding on everyone.”

5. The Convention on the Rights of the Child

21. Provisions of the Convention on the Rights of the Child relevant to the present case are the following:

“ Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

... ”

and

“ Article 40

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child ’ s sense of dignity and worth, which reinforces the child ’ s respect for the human rights and fundamental freedoms of others and which takes into account the child ’ s age and the desirability of promoting the child ’ s reintegration and the child ’ s assuming a constructive role in society.”

... ”

6. Domestic case-law

22. The approach to the taking of cellular material for DNA profiling from convicted minors varied among the Regional Courts. Some made no distinction between convicted minors and convicted adults, as section 2 § 1 of the DNA Testing (Convicted Persons) Act did not . Others balanced the interests served by DNA profiling against the interests of the individual minor convict.

23. Among the latter was the Regional Court of Amsterdam, which on 14 February 2006 gave a series of four decisions (LJN AV1627, LJN AV1630, LJN AV1664 and LJN AV1668) reviewing individually orders given by the public prosecutor to take cellular material from convicted minors. In two of these cases, LJN AV1630 and LJN AV1668, it decided that the interests of the minor outweighed the public interest; in the other two it did not.

24. In one of the latter two cases, LJN 1664, the Regional Court responded as follows to an argument that the parents or counsel of the convicted minor ought to have been informed of the public prosecutor ’ s order:

“The Regional Court agrees with the convict that the order of the public prosecutor must also be brought to the knowledge of the minor ’ s parents and counsel. Admittedly Article 504 CCP only mentions the [minor] ‘ suspect ’ , but in view of the nature and scope of the order, including the possibility given in the order to lodge an objection, the Regional Court takes the view that the matter should be viewed in the light of Article 77ee of the Criminal Code [which gives detailed provisions for the execution of specific penalties imposed on minor convicts]. It has in the meantime come to the Regional Court ’ s notice that copies of the order are now provided to the parents and counsel.

The importance of having the parents and counsel of the minor take cognizance of the order – as relevant to the case in hand – lies in the possibility to lodge an objection (within the time-limit). The Regional Court does not agree with counsel that the failure to notify the convict ’ s parents and counsel entails the nullity of the order itself. However, the consequence is that the convict ’ s objection is declared admissible despite the failure to meet the time-limit, as the said failure is excusable.”

25. Another Regional Court which balanced the general interest against the interest of the minor was the Regional Court of Middelburg, as it did in a decision of 15 February 2006 (no. RK 05/412, unpublished).

26. In view of the differing decisions taken by different Regional Courts, the Procurator General at the Supreme Court ( Hoge Raad ) lodged an appeal in cassation in the interest of the law ( cassatie in het belang der wet ) in the two of the above-mentioned cases, namely the decision of the Regional Court of Amsterdam LJN AV1630 and the said decision of the Regional Court of Middelburg.

27. In a pair of, for present purposes, identical judgments of 13 May 2008 ( LJN BC8231, Nederlandse Jurisprudentie (Netherlands Law Reports, “NJ”) 2008, no. 527; and LJN BC8234, NJ 2008, no. 528), the Supreme Court held as follows:

“4.3. The Supreme Court first observes that the purport of the Act [i.e. the DNA Testing (Convicted Persons) Act ] is the efficient detection of offences committed by the convict and dissuasion of convicts from reoffending. The wording, as well as the aim and purport of the Act, as apparent from [the drafting history of the Act], are based on the premise that cellular material is taken from every convict, as set out in section 2(1) of the Act. The public prosecutor is under an obligation to give an order in that sense absent one of the exceptions set out in the first paragraph. The system admits of no further balancing of interests. No distinction is made between adults and minors.

4.4. In a case such as the present the Regional Court must consider whether the exception set out in section 2(1)(b) applies, that is to say, whether it can reasonably be assumed that in view of the nature of the offence or the specific circumstances in which the offence has been committed, determining and processing the DNA profile will be of no significance for preventing, detecting, prosecuting and trying criminal offences committed by the convict. It appears from the drafting history [of the Act] that the standard ‘ nature of the offence ’ refers to crimes for which the examination of DNA cannot contribute to detection. The standard ‘ special circumstances under which the offence was committed ’ relates to the person of the convict. This concerns the situation in which, despite conviction of a criminal offence ( misdrijf ), in the given circumstances a DNA examination cannot be justified.

4.5. As set out ... above, the Regional Court has applied different standards. These diminish the system of widespread collection of DNA material intended by the legislature, in which there is scope only for two exceptions which must be strictly construed and in which there is no room for any generic exception for minors. In so doing the Regional Court has misapplied section 2(1)(b) of the Act. Such a generic exception cannot be derived from the Convention on the Rights of the Child either.”

COMPLAINTS

28. The applicant complains under Article 8 of the Convention of a violation of his right to respect for his private life. He argues that the taking of cellular material was not in accordance with the law, since his lawyer was not informed about the order for the cellular material to be taken and therefore could not inform and advise him about the possibilities of objecting against the taking of cellular material by someone other than a medical professional. Moreover, it has to be taken into account that at the time of receiving the order, he was a minor. Furthermore the applicant claims that he was not informed about the possibility to be assisted by a lawyer.

29. The applicant further claims that the taking and storing of cellular material from his body cannot be regarded as necessary in a democratic society. He submits that, in accordance with Article 8 of the Convention and Article 40 of the Convention on the Rights of the Child, a minor ’ s personal interests should be balanced against the general interests of society in applying the Act; and that within that balancing exercise, the interests of the minor should be the primary consideration, as required by Articles 3 and 40 of the Convention on the Rights of the Child.

30. The applicant also claims that the storage of his DNA profile will not be beneficial for the possible detection, prevention or conviction of future crimes committed by him and that the exception contained in section 2(1)(b) of the Act or Article 40 of the Convention on the Rights of the Child should therefore apply.

31. The applicant finally complains, also under Article 8 of the Convention, that he was wrongly denied the possibility to lodge an objection before the cellular material was taken.

QUESTIONS TO THE PARTIES

1. a. Has there been an interference with the applicant ’ s right to respect for his private life , within the meaning of Article 8 § 1 of the Convention?

b. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

2. Did the applicant have at his disposal an e ffective domestic remedy for his complaints under Article 8 of the Convention, as required by Article 13 of the Convention?