Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, NETHERLANDS (KINGDOM OF THE); [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.26-06198 (E) 010626 020626
Human Rights Committee
Views adopted by the Committee under article 5 (4) of the
Optional Protocol, concerning communication
No. 2362/2014*, **, ***
Submitted by:
S.L. (represented by counsel, Johannes Jeremias
Weldam)
Alleged victim:
The author
State Party:
Netherlands
Date of communication:
27 January 2014
Document references:
Special Rapporteur’s rule 97 decision,
transmitted to the State Party on 21 March 2014
(not issued in document form)
Date of adoption of Views:
18 July 2017
Subject matter:
Compulsory DNA profiling of child in conflict
with the law
Procedural issues:
Litis pendens, failure to exhaust domestic
remedies, insufficient substantiation of claims
Substantive issues:
Arbitrary or unlawful interference with privacy,
due process guarantees for children in conflict
with the law
Articles of the Covenant:
2 (3), 14 (3) (e), 14 (4) and 17
Articles of the Optional Protocol:
2, 5 (2) (a) and 5 (2) (b)
1.1
The author of the communication is S.L., a Dutch national born in 1994. He claims to
be victim of a violation of articles 14 (3) (e), 14 (4) and 17 of the Covenant. The Optional
Protocol entered into force for the State Party on 11 March 1979. The author is represented
by counsel.
1.2
On 6 June 2014, the Committee, acting through its Special Rapporteur on new
communications and interim measures, decided to reject the State Party’s request to consider
the admissibility of the communication separately from the merits.
* Adopted by the Committee at its 120th session (3–28 July 2017).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Yadh Ben Achour, Ilze Brands Kehris, Ahmed Amin Fathalla, Olivier de
Frouville, Christof Heyns, Yuji Iwasawa, Bamariam Koita, Marcia V.J. Kran, Duncan Laki
Muhumuza, Photini Pazartzis, Mauro Politi, José Manuel Santos Pais, Yuval Shany and Margo
Waterval.
*** Individual opinions by Committee members Olivier de Frouville, José Manuel Santos Pais and Yuval
Shany are annexed to the present Views.
United Nations
CCPR/C/120/D/2362/2014
International Covenant on
Civil and Political Rights
Distr.: General
22 May 2026
Original: English
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Facts as submitted by the author
2.1
On 26 March 2009, the Children’s Judge of the District Court of Utrecht convicted
the author for committing an “indecent act with a person younger than 16 years old”1 and for
raising a false bomb alert2 and sentenced him to 14 days of suspended detention in a centre
for children in conflict with the law, with a probationary period of two years, and 30 hours
of community service or, alternatively, 15 days’ imprisonment. On 14 May 2009, the district
public prosecutor ordered that the author’s DNA profile be taken. This order was based on
article 2 (1) of the Dutch DNA Testing (Convicted Persons) Act (DNA Testing Act), which
requires the public prosecutor at the first instance court that rendered the judgment to order
that a DNA sample be taken from a person who has been convicted of an offence for which
pretrial detention may be imposed or an offence carrying a statutory maximum prison
sentence of at least four years.3 Section 1 (c) of the Act includes within the term “convicted
person” those persons sentenced to detention in a young offender institution or an alternative
sanction.
2.2
On 15 July 2009, a mouth swab was taken from the author to determine his DNA
profile and enter it into the DNA databank.
2.3.
On 20 October 2009, the author lodged an objection4 with the District Court of Utrecht
against the decision to have his DNA profile determined and processed. The author claimed
that, when his DNA material had been collected, he had not been asked whether he objected
to the material being collected by an investigating officer instead of a doctor or nurse and had
not been given a copy of the DNA collection report. He also argued that, given the special
nature of his offence and the special circumstances in which the crime was perpetrated, his
case fell within the exception provided under article 2 (1) (b) of the DNA Testing Act.
According to this provision, no order for DNA sample collection will be made if, in view of
the nature of the offence or the special circumstances under which it was committed, it may
reasonably be assumed that the determination and processing of the DNA profile will not be
of significance for the prevention, detection, prosecution and trial of criminal offences
committed by the person in question.
2.4
On 26 January 2010, the District Court of Utrecht declared the author’s objection to
be unfounded. The Court considered that the official DNA collection report reflected that the
author had not opposed the DNA material being collected by a designated official. As to the
exception under article 2 (1) (b) of the DNA Testing Act, the Court considered that neither
the crimes for which the author had been convicted – both of which fell within the scope of
the DNA Testing Act – nor the circumstances in which these crimes had been committed –
his age and the fact that he was a first-time offender – justified the application of said
exception.
2.5
On 16 June 2010, the author filed a complaint with the European Court of Human
Rights, alleging a violation of his rights under articles 6 (fair trial guarantees) and 8 (right to
private and family life) of the Convention for the Protection of Human Rights and
Fundamental Freedoms (European Convention on Human Rights) and article 3 of the
Convention on the Rights of the Child (best interest of the child). On 2 May 2013, the Court
found the complaint to be inadmissible.5
1 According to the author’s objection filed on 20 October 2009 with the District Court of Utrecht, the
author swept a hand into a female person’s swimsuit at a public pool.
2 These criminal offences are punishable under articles 247 and 142 (a) of the Dutch Criminal Code,
respectively, with a maximum penalty of six years’ and four years’ imprisonment, respectively.
3 These offences are listed in article 67 of the Dutch Code of Criminal Procedure.
4 Under article 7 (1) of the DNA Testing (Convicted Persons) Act, an objection may be lodged with the
district court against the determining and processing of a DNA profile and within 14 days from the
date on which the tissue sample was taken.
5 The decision by the Court, sitting in a single-judge formation, was communicated to the author by
letter dated 10 May 2013, which reads: “In the light of all the material in its possession and insofar as
the matters complained of are within its competence, the Court found that the admissibility criteria set
out in articles 34 and 35 of the Convention have not been with (sic)”.
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Complaint
3.1
The author argues that he was subjected to arbitrary interference with his private life,
in violation of article 17 of the Covenant. The DNA Testing Act does not enable the public
prosecutor to balance the various interests at stake. The grounds for applying the exception
provided under article 2 (1) (b) of the Act are not assessed unless an objection is lodged. Such
objections can be filed within 14 days from the date on which the DNA sample is taken and
it relate to the determination and processing of the DNA profile in the database, not to the
actual taking of the sample.
3.2
The author claims that the authorities did not take into account his best interests, given
that he was still a child at the time of ordering and taking of the DNA sample, in violation of
article 14 (4) of the Covenant, according to which, in the case of children in conflict with the
law, the criminal procedure shall be such as will take account of their age and the desirability
of promoting their rehabilitation. His age was not considered when weighing up the interests
in carrying out a DNA test.
3.3
The author further claims that his DNA sample was not taken by medical staff but by
a forensic police officer. According to national regulations, the taking of a DNA sample by
someone other than a doctor or nurse is permitted only if the person subject to the sampling
gives explicit permission. The author was neither asked whether he consented to the DNA
sample being taken by an investigating officer nor informed of the possibility of objecting
thereto. As a child, he could not have been expected to be aware of this possibility without
being informed. In addition, he and his legal representative should have been informed of his
rights and his representative should have signed the report.
3.4
The author argues that the District Court did not take into account his interest as a
child when considering his objection to his DNA being taken for determination and
processing. The Court also attached insufficient value to the author’s statement that he had
not consented to his DNA material being taken by an investigating officer and that he was
not allowed to question the investigating officer who took his DNA, in violation of
article 14 (3) (e) of the Covenant.
State Party’s observations on admissibility
4.1
In its submissions dated 2 May 2014, the State Party claims that the communication
is inadmissible for failure to exhaust domestic remedies. The author has not raised before the
national courts his argument under on article 17 of the Covenant that objections to DNA
testing can only refer to the determination and processing of DNA material, but not to the
actual taking of the sample.
4.2
The State Party also objects to the admissibility of the communication on the grounds
that the matter has already been examined by the European Court of Human Rights and been
declared inadmissible. While recognizing that admissibility criteria under the European
Convention of Human Rights and the Optional Protocol are not identical, the State Party
requests that the Committee take this decision into account. Should the Committee come to
a conclusion different from that of the Court, the State Party would be confronted with
contradictory rulings by two supervisory bodies on identical issues. A finding by the
Committee that the communication is admissible or even well-founded would be extremely
difficult to reconcile with the Court’s conclusions.
Author’s comments on the State Party’s observations on admissibility
5.1
On 4 June 2014, the author acknowledges that he did not raise his claim regarding the
limited scope of objections under the DNA Testing Act in his objection filed with the District
Court of Utrecht. However, bringing this claim in the context of these court proceedings
would have been ineffective, because well-established national case law has already
determined that the fact that objections can only be filed against the determination and
processing of DNA, not the actual taking of the DNA sample, is compatible with the
Covenant.
5.2
With regard to the decision of the European Court of Human Rights of 2 May 2013,
the author claims that this decision lacks reasoning and, therefore, does not establish on what
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basis the complaint was deemed inadmissible. Additionally, while provisions contained in
the Covenant and the European Convention on Human Rights are similar, the Committee’s
supervisory functions under the Optional Protocol would be frustrated if it had to conform to
the judgments of the European Court of Human Rights.
State Party’s observations on the merits
6.1
In its submissions dated 7 October 2014, the State Party notes that the right to respect
for privacy is recognized under Dutch law but is not absolute. The Committee has already
stated that interference may be allowed provided that it is lawful, proportional and reasonable,
and that it complies with the provisions, aims and objectives of the Covenant.6 The national
legislation in place complies with these criteria.
6.2
The aim of the DNA Testing Act is to assist in the prevention, investigation and
prosecution of offences committed by convicted persons. DNA testing is a highly effective
instrument that has contributed substantially to law enforcement in recent years. The
collection of DNA material under the Act therefore serves a legitimate purpose, namely, the
investigation of criminal offences, and protects the rights and freedoms of others, such as
victims of serious violent and sexual offences. There is no investigative tool available that
can achieve similar results. It is therefore an appropriate and necessary measure in a
democratic society. Furthermore, the author may obtain a certain benefit from the inclusion
of his DNA profile in the national database in that he may be rapidly eliminated from the list
of persons suspected of a crime in the investigation of which DNA material has been found.7
6.3
The Act also establishes a proportional measure, as it ensures minimal interference by
limiting its scope to persons who have been given a custodial sentence, juvenile detention
order or alternative sanction for offences of such gravity that pretrial detention may be
imposed. DNA material cannot be collected for less serious criminal offences or for penalties
consisting of a fine. According to article 2 (1) (b) of the Act, tissue samples may not be
collected, even for serious offences, when it can reasonably be supposed that the determining
and processing of the DNA profile cannot be of relevance to the prevention, investigation
and prosecution of criminal offences committed by the convicted person. Compliance with
this requirement can be monitored by the courts. Yet, in the interest of effectiveness, it is
only in exceptional cases that this provision applies, including cases where it is actually
impossible for the person to reoffend (for example, owing to bodily injury). This requires an
objectively verifiable circumstance. In this regard, mere remorse or a promise on the part of
the convicted person is not enough. The Act provides for a limited weighing up of the
interests of testing by the public prosecutor before the DNA collection order is issued. In the
present case, the public prosecutor did not find that the exception was applicable and he was
therefore obliged to issue the order for collection of the author’s DNA.
6.4
Under the DNA Testing Act, the convicted person can lodge an objection with the
district court against the determining and processing of his or her DNA profile. No DNA
profile can be determined while an objection thereto is pending. The Act does not provide
for a remedy against the collection of a tissue sample as such. The rationale behind this is
that the person subject to the Act is mainly affected by having his or her DNA determined
and processed, and not by the mere collection of his or her DNA. Thus, no specific legal
remedy was provided for objecting to the DNA collection. However, the person may lodge a
civil-law injunction challenging the collection of DNA material. In the present case, the
author could have applied to an interim relief judge for an injunction prohibiting the
collection of a tissue sample on the grounds that, by obtaining a sample for the purpose of
DNA testing, the State would be committing an unlawful act.
6.5
The DNA sample is obtained in a manner that sufficiently takes into consideration the
interests of the individual concerned. The DNA collection involves very minor interference
with personal integrity; cells are obtained from the inside of the cheek using a mouth swab.
This method is useful and effective in the investigation of criminal offences and the
6 The State Party cites the Committee’s general comment No. 16 (1988) on the right to privacy.
7 The author cites the decision of 7 December 2006 of the European Court of Human Rights in Van der
Velden v. the Netherlands.
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individual concerned suffers no adverse consequences from the method used, as long as he
or she does not commit any future offences. Both the tissue sample and the DNA profile are
codified and stored anonymously. This is the case for both adults and children.8
6.6
In the present case, the interference with the author’s right to privacy was lawful.
There was a statutory basis for the DNA collection, since the offences for which he was
convicted fell within the scope of the DNA Testing Act, the measure served a legitimate aim
and there were safeguards in place to ensure that the interference was proportionate.
6.7
With regard to the author’s claim under article 14 (3) (e) of the Covenant, the State
Party notes that this provision refers to the right to examine and propose witnesses and applies
in the context of criminal proceedings against the individual and not, as in the present case,
in the context of the proceeding consisting of examining the objection to the DNA
determination and processing. The investigating officer keeps a record of the actions taken
and the information that has come to his or her attention, which makes it possible to check
whether he or she acted according to the law. The official record is drawn up under oath so,
in principle, it can and must be assumed that it is accurate. The author has failed to show how
questioning the investigating officer would be of relevance to his case, especially considering
that the officer was not required by the DNA Testing Act to explicitly inform the author that
he could object to a DNA sample being collected.
6.8
With regard to the author’s claims under article 14 (4) of the Covenant, the State Party
notes that the DNA Testing Act does not apply to children below age 12, the age of legal
responsibility in the State Party. 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. Therefore, the Act is not
contrary to children’s interest.9 On the contrary, the processing of the DNA profiles of
convicted children increases the chances of arresting them with regard to other offences and
can therefore contribute to the social rehabilitation of these children.10 It would not be in the
children’s interest to make an exception to the applicability of the DNA Testing Act and such
exception does not derive from the Convention on the Rights of the Child. However, the
public prosecutor does have the possibility of weighing up the interests involved before
ordering that a tissue sample be taken, based on the exception contained in the DNA Testing
Act, and district courts can examine whether that assessment was correct.11 That does not
mean that, in an individual case involving a minor, a court cannot declare an objection to the
determining and processing of a DNA profile to be well founded. There are examples in the
jurisprudence whereby, after assessing an objection to the determining and processing of
DNA, the court has held that, in the case at hand, the measure would not be relevant to the
aims of the Act. However, in the author’s case, the District Court of Utrecht found that neither
the facts nor the circumstances under which the offence was committed could justify the
application of the exception contained in article 2 (1) (b) of the DNA Testing Act.
6.9
Regarding the author’s claims as to the manner in which the samples were collected,
the State Party argues that, under the DNA Testing Act, tissue samples must be collected by
a physician or nurse. However, article 3 (3) of the DNA (Criminal Cases) Tests Decree
establishes that provided the convicted person does not object, samples of cheek cells or hair
follicles may be collected from a convicted person by an investigating officer designated for
8 The State Party cites the decision of 20 January 2009 of the European Court of Human Rights in W. v.
the Netherlands, where the Court was satisfied that the Dutch DNA Testing Act contained
“appropriate safeguards against blanket and indiscriminate retention of DNA records” given that
DNA can only be taken from persons convicted of an offence of a certain gravity, and that “the DNA
records can only be retained for a prescribed period of time that is dependent on the length of the
statutory maximum sentence that can be imposed for the offence that has been committed”.
9 Ibid.
10 The State Party cites the advisory opinion of the Advocate General at the Supreme Court, in the sense
that the storing of DNA profile need not impede the convicted child’s social development and his
reintegration into society.
11 The State Party cites a decision by Hertogenbosch District Court of 14 November 2008 in the case of
a 16-year-old who had been convicted of a crime, in which the court found that the criminal offence
could be regarded as a “single youthful indiscretion” and that the collection of DNA material would
not be relevant to the aims of the Act.
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this purpose by the public prosecutor who meets the requirements laid down by ministerial
order. Article 8 of the Decree states that, to meet the requirements, the investigating officer
must: (a) have successfully completed a course on DNA collection given by the Criminal
Investigation College and certified by the Police Examination Centre; and (b) not be involved
in the investigation for which the sample is being taken. Article 4 of the Decree states that
the DNA collection must be conducted in the presence of an investigating officer who must
draw up an official report. If the collection was done by a person other than a physician or a
nurse, the report should state that the convicted person did not object to that effect.
6.10
The convicted person is not required by law to sign the official report on the DNA
collection. The investigating officer signs the report under oath and it is therefore assumed
in principle to be correct. The State Party sees no reason to make it legally compulsory for a
child or his or her legal representative to sign the official report. Also, the author has failed
to explain how his interest was affected by not having signed the report. Finally, although
not required by law, the parent or legal representatives of a convicted child and his or her
counsel receive a copy of the order requesting the DNA collection and an information
brochure explaining that the offender has the right to object to the determination of his or her
DNA profile. The brochure also explains that DNA may be collected by a specially trained
investigating officer.
Author’s comments on the State Party’s observations on the merits
7.1
On 17 December 2014, the author challenges the State Party’s allegation that the
storing of DNA material has no negative consequences for him unless he reoffends. He notes
that, once the material is stored, it may be subject to mismanagement. A study ordered by the
Minister of Justice and Security in 2011 showed that 1,700 mistakes in documents of the
Netherlands Forensic Institute were found between 1997 and 2010, in 1.3% of the total
investigations.
7.2
The author challenges the State Party’s argument that article 14 of the Covenant is not
applicable in the context of the procedure for objecting to the DNA determination and
processing. This procedure is inextricably linked to the main criminal proceeding, which
resulted in the author’s conviction. The DNA testing order was based on this conviction. The
DNA procedure should be regarded as equivalent to the phases of investigation and
prosecution. Questioning the investigating officer was relevant to demonstrate that the author
was not asked whether he had any objections to the DNA test being practised by someone
other than a physician or nurse. The author also disputes that the investigating officer is not
obliged to explicitly inform the convicted person of his or her right to object to DNA being
taken by a non-medical professional. The DNA Testing Act requires that the convicted person
be specifically asked whether he or she wishes to object. It would otherwise be meaningless
to provide for such a possibility if tacit consent were simply assumed, especially in the case
of children. A child cannot be expected to know his or her rights unless informed of them.
7.3
While the author acknowledges that national law does not require that the convicted
person sign the official report on DNA testing, he argues that signature should be required
based on the Covenant, as signature would ensure that the person is informed of his or her
right to object. If the convicted person is a child, then his or her legal representative should
sign the report.
7.4
The DNA Testing Act does not distinguish between adults and children, as recognized
by the State Party and, in practice, the weighing up of the interests –including the interests of
the child – does not take place before an order requesting DNA testing is issued. This
weighing up only takes place if the affected person objects to the determination and
processing of the DNA profile.
7.5
The author disputes the State Party’s statement that a brochure is in practice sent
together with the DNA testing order in cases where the convicted person is a child.
7.6
The author notes that the meticulousness of the taking of the sample by a person who
is not a doctor or nurse cannot be guaranteed and that the risk of error increases where the
person performing the DNA test lacks expertise.
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7.7
The author requests that his DNA profile be removed from the DNA databank and
that he receive financial compensation as reparation for the violation of his rights and to cover
the cost of legal assistance.12 He also notes that he is open to a friendly settlement.
State Party’s additional observations
8.1
On 8 April 2015, the State Party reiterates its arguments related to the examination of
the case by the European Court of Human Rights.
8.2
With regard to the author’s statements concerning the errors in DNA investigations,
the State Party notes that the Netherlands Forensic Institute is an institution accredited to
perform DNA tests and is subject to yearly controls of its work quality. The control system
includes the registration of anomalies, which vary from technical problems to human errors
or contamination, none of which had any repercussions under criminal law.13 The corrective
measures taken to address anomalies are also registered. The number of notifications (1,900)
rose in the referred period from 1997 to 2010 simply because of the increase in the number
of DNA analyses done every year and the use of increasingly sensitive equipment.
8.3
As to the author’s claim that no weighing up of the interests takes place when the
collection of the DNA sample is ordered, collected and processed, let alone the interests of
the child, the State Party notes that the public prosecutor’s order to collect the author’s DNA
material was based on the judgment of the children’s judge at the District Court of Utrecht.
The author’s conviction fulfilled the criteria set out in article 1 (c) of the DNA Testing Act.
In response to the author’s objection to the processing of his DNA sample, the District Court
assessed whether the exception provided in article 2 (1) (b) of the DNA Testing Act was
applicable, but found that the circumstances of the case did not provide any grounds to apply
the exception. The District Court’s task was to review the public prosecutor’s actions and
ensure the proportionate application of the Act. This course of events illustrates how the
criteria set out in the DNA Testing Act assist in striking a balance between the effectiveness
of the investigation and the proportionality of the collection and processing of DNA samples
from convicted persons, including children.
Issues and proceedings before the Committee
Consideration of admissibility
9.1
Before considering any claims contained in a communication, the Human Rights
Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not
it is admissible under the Optional Protocol to the Covenant.
9.2
The Committee takes note of the State Party’s argument that the same case had already
been considered and declared inadmissible by the European Court of Human Rights.
However, the Committee observes that, the case is no longer pending before such Court. In
light of the foregoing, the Committee considers that there is no obstacle to the admissibility
of communication under article 5 (2) (a) of the Optional Protocol.
9.3
The Committee takes note of the State Party’s argument that domestic remedies were
not exhausted because the author failed to raise his claim regarding the limited scope of the
objections under the DNA Testing Act and, in particular, the fact that such objections can
only be filed once the DNA has already been taken. The Committee also notes the author’s
uncontested argument that bringing this claim in the context of the objection proceedings
would have been ineffective because it has already been determined by well-established case
law that the limited scope of the objections under the DNA Testing Act is compatible with
the Covenant. Therefore, the Committee considers that there is no obstacle to the
admissibility of communication under article 5 (2) (b) of the Optional Protocol.
12 The author notes that the legal assistance in this procedure is financed by the State Party and that his
personal contribution was €100 for the proceedings before the European Court of Human Rights and
€129 for the proceedings before the Committee.
13 The State Party cites the follow-up study by the Public Prosecutor Service. See Netherlands, House of
Representatives, Parliamentary papers, House of Representatives 2011–2012, 33 000 VI, No. 71.
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9.4
The Committee takes note of the author’s allegations under article 14 (3) (e) of the
Covenant that the District Court of Utrecht did not attach sufficient value to the author’s
statement regarding his lack of consent to his DNA material being taken by an investigating
officer, and that it did not allow the author to question the investigating officer. However, the
Committee considers that the author has failed to explain why he considered it damaging for
him that the DNA material was taken by an investigating officer. Accordingly, the Committee
considers that the author has not sufficiently substantiated this claim for the purposes of
admissibility and declares the claim inadmissible under article 2 of the Optional Protocol.
9.5
The Committee considers that the author has sufficiently substantiated his claims
under articles 14 (4) and 17 of the Covenant for the purposes of admissibility. As no other
issues concerning admissibility arise, the Committee declares the communication admissible
insofar as it appears to raise issues under articles 14 (4) and 17 of the Covenant, and proceeds
to its examination on the merits.
Consideration of the merits
10.1
The Committee has considered the present communication in the light of all the
information made available to it by the parties, as required under article 5 (1) of the Optional
Protocol.
10.2
The Committee takes note of the author’s argument that his subjection to DNA testing
constituted arbitrary interference in his private life, in violation of article 17 of the Covenant.
He alleges, in particular, that neither his age nor the nature of the crime for which he was
convicted were taken into account by the public prosecutor when ordering the DNA testing;
that DNA testing orders are issued automatically, without an assessment of the individual
circumstances of each case; and that the scope for filing an objection does not include the
actual taking of the sample.
10.3
The Committee considers that the collection of DNA material for the purpose of
analysing and storing the collected material in a database that could be used in the future for
criminal investigation purposes is sufficiently intrusive as to constitute “interference” in the
author’s private life under article 17 of the Covenant.14 The issue that thus arises is whether
such interference was arbitrary or unlawful under article 17 of the Covenant.
10.4
The Committee notes the State Party’s position that DNA testing as regulated by the
DNA Testing 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. It argues that it is proportional, given that it ensures
minimal interference as the 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 and investigating such crimes.
10.5
The Committee recalls that even interference provided for by law should be in
accordance with the provisions, aims and objectives of the Covenant and should be, in any
event, reasonable in the particular circumstances. 15 The notion of arbitrariness includes
elements of inappropriateness, injustice, lack of predictability and due process of law,16 as
14 The Committee also concurs with the following analysis by the European Court of Human Rights in
the case of S. and Marper v. the United Kingdom, judgment by the Grand Chamber, 4 December
2008, paras. 72 and 73: “In addition to the highly personal nature of cellular samples, the Court notes
that they contain much sensitive information about an individual, including information about his or
her health. Moreover, samples contain a unique genetic code of great relevance to both the individual
and his relatives … Given the nature and the amount of personal information contained in cellular
samples, their retention per se must be regarded as interfering with the right to respect for the private
lives of the individuals concerned.”
15 See general comment No. 16 (1988), para. 4. See also S. and Marper, para. 107: “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”.
16 See, inter alia, the Committee’s general comment No. 35 (2014) on liberty and security of person,
para. 12, Ilyasov v. Kazakhstan (CCPR/C/111/D/2009/2010), para. 7.4, and D.T. v. Canada
(CCPR/C/117/D/2081/2011), para. 7.6.
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well as elements of reasonableness, necessity and proportionality.17 Even though, in society,
the protection of privacy is necessarily relative, the competent public authorities should only
be able to call for such information relating to an individual’s private life the knowledge of
which is essential in the interests of society as understood under the Covenant.18 Even with
regard to interferences that conform to the Covenant, relevant legislation must specify in
detail the precise circumstances in which such interferences 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.19
10.6
While the State Party has provided explanations as to the content and general
application of the DNA Testing Act, it has not indicated why it was necessary, in light of the
State Party’s stated legitimate aim, to subject the author to compulsory DNA testing
considering the nature of his criminal acts.
10.7
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 for offences of such gravity that pretrial
detention may be imposed. The State Party has admitted that the Act only provides for limited
weighing up of interests by the public prosecutor before the DNA collection order is issued.
The Committee also notes that, even though exceptions to DNA testing do exist under
article 2 (1) (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. According to
the State Party, article 2 (1) (b) of the Act applies only in exceptional cases, for instance in
cases where it is actually impossible for the person to reoffend (such as owing to bodily injury)
(para. 6.3 above).
10.8
The Committee also notes that the Act does not provide for a remedy against the
collection of a tissue sample, but only against the determining and processing of a person’s
DNA profile. The State Party alleges that a person may lodge a civil-law injunction
challenging the collection of DNA material, on the grounds that, by obtaining a sample for
the purpose of DNA testing, the State is committing an unlawful act. However, the State
Party has not demonstrated that such a remedy would be effective, taking into account, in
particular, that the collection of samples is “lawful” under domestic law. The Committee also
notes that there is no appeal available against a court decision rejecting the objection on the
processing of a person’s DNA profile.
10.9
The Committee notes the State Party’s position that the DNA collection involves very
minor interference with a person’s privacy because both the DNA sample and the DNA
profile are codified and stored anonymously. However, the Committee also notes that the
material and profile are kept for 30 years in cases of serious offences, and 20 years in the
case of less serious offences.
10.10 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, therefore, 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.20 As provided for in, among others,
articles 24 and 14 (4) of the Covenant, State parties have the obligation to take special
measures of protection. 21 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
17 General comment No. 35 (2014), para. 12.
18 General comment No. 16 (1988), para. 7.
19 Ibid., para. 8.
20 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 and 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 are acquitted or have finished their sentence.
21 General comment No. 17 (1989) on the rights of the child and Vyacheslav Berezhnoy v. Russian
Federation (CCPR/C/118/D/2107/2011), para. 9.7.
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GE.26-06198
consideration.22 Specific attention should be given to the need for the protection of children’s
privacy at criminal trials. 23 As explained by the author, his age was never taken into
consideration, including throughout the process of collection of the DNA sample, where he
was not informed of the possibility of objecting to the sample being collected by a police
officer, and was not offered the possibility of being accompanied by a legal representative.
10.11 Accordingly, the Committee finds that, although lawful under domestic law, the
interference in the author’s privacy was not proportionate to the legitimate aim of prevention
and investigation of serious crimes. Therefore, the Committee concludes that such
interference was arbitrary and in violation of article 17 of the Covenant.
10.12 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.
11.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts before it amount to a violation of article 17 of the Covenant.
12.
In accordance with article 2 (3) (a) of the Covenant, the State Party is under an
obligation to provide the author with an effective remedy. This requires it to make full
reparation to individuals whose Covenant rights have been violated. In the present case, the
State Party is obligated, inter alia, to provide the author with adequate compensation. The
State Party is also under an obligation to prevent similar violations from occurring in the
future.
13.
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 or subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy where
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 Committee’s Views and to have them widely
disseminated in the official language of the State Party.
22 Committee on the Rights of the Child, general comment No. 10 (2007), para. 10.
23 See S. and Marper v. the United Kingdom, para. 124.
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Annex I
[Original: French]
Individual opinion of Olivier de Frouville (concurring)
1.
I endorse the Committee’s detailed reasoning in this case and its conclusion that there
has been a violation of article 17 of the Covenant. While the numerous opportunities that
DNA analysis provides in terms of crime prevention and law enforcement should not be
overlooked, the threat to freedoms posed by this technology should not be ignored. The
Covenant and human rights standards in general require States to exercise nuanced judgment
in this regard.
2.
Under pressure from public opinion, policymakers may be tempted to expand DNA
sampling to an ever-wider group of people. The law that is currently in force in the Kingdom
of the Netherlands and which is at issue in this case is clearly on this slippery slope due to its
very broad scope of application, which extends to any person convicted of an offence
potentially giving rise to pretrial detention or of an offence punishable by a maximum
sentence of at least 4 years’ imprisonment. In addition to the fact that the law does not take
into account the age of the convicted person and therefore does not afford minors the
protection to which they are entitled, the aforementioned criteria are inappropriate and render
the law itself contrary to article 17 of the Covenant. This is particularly true when, as in this
case, the range of penalties is extremely wide, ranging from suspended sentences of a few
days – such as that imposed on the author – to 4 years’ imprisonment. In other words, DNA
sampling should not be dependent on the maximum applicable penalty. It is justified only in
relation to specific serious offences that carry heavy sentences, particularly in cases of repeat
offences. Furthermore, DNA sampling should not be automatic or quasi-automatic; rather, it
should be contingent on a court order issued once the conviction has been upheld by the
highest court and that order should be subject to appeal.
3.
As the European Court of Human Rights noted in a recent ruling, “such facilities
cannot be implemented as part of an abusive drive to maximize the information stored in
them and the length of time for which they are kept. Indeed, without respect for the requisite
proportionality vis-à-vis the legitimate aims assigned to such mechanisms, their advantages
would be outweighed by the serious breaches which they would cause to the rights and
freedoms which States must guarantee under the Convention to persons under their
jurisdiction.”1
4.
Crime prevention and law enforcement are legitimate goals in any democratic society,
but they cannot be achieved at the cost of creating a surveillance and control State. The ideal
of a crime-free society is, by its very nature, a totalitarian ideology.
1 European Court of Human Rights, Aycaguer v. France, application No. 8806/12, Judgment, 22 June
2017, para. 34; note by M.C. de Montecler, Actualité juridique. Droit administratif, 2017, p. 1311;
and commentary by V. Gautron, Actualité juridique. Pénal, 2017, p. 391.
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Annex II
[Original: English]
Individual opinion of José Santos Pais (partially concurring, partially
dissenting)
1.
I fully share the reasoning of the majority of the Committee that the State Party
violated the author’s rights under article 17 of the Covenant. However, I believe the same
reasoning should have led to also finding a violation of the author’s rights under article 14 (4)
of the Covenant.
2.
The Committee considered that the collection of DNA material for the purpose of
analysing and storing the collected material into a database which could be used in the future
for criminal investigation purposes is sufficiently intrusive as to constitute “interference” in
the author’s private life (para. 10.3 of the Committee’s Views). It further recalled that even
interference provided for by law should be in accordance with the provisions, aims and
objectives of the Covenant and should be, in any event, reasonable in the particular
circumstances (para. 10.5).
3.
The Committee also noted that, while the State Party has provided explanations as to
the content and general application of the DNA Testing Act, it has not indicated why it was
necessary, in light of the State Party’s stated legitimate aim, to subject the author to
compulsory DNA testing considering the nature of his criminal acts (para. 10.6).
4.
The facts, as stated in the file, reveal that the author was convicted, on 26 March 2009,
when he was only 15 years old, for committing an “indecent act with a person younger than
16 years old” (the author allegedly swept a hand into a female’s swimsuit at a public pool)
and for raising a false bomb alert. As a result, he was sentenced to 14 days of suspended
detention in a centre for children in conflict with the law, with a probationary period of two
years, and 30 hours of community service or, alternatively, 15 days’ imprisonment (para. 2.1).
5.
From my perspective, the above criminal acts, of minor gravity, only reveal the
immaturity of the author, which may also account for the light penalty imposed on him.
6.
However, according to article 2 (1) of the Dutch DNA Testing Act, the public
prosecutor is to order a sample of cellular material to be taken from a person who has been
convicted of an offence subject to pretrial detention or carrying a statutory maximum prison
sentence of no less than four years (para. 2.1). The Act thus does not take into account the
exact nature of the criminal facts, but only of the mere possibility of imposing pretrial
detention and of the maximum length of the prison sentence that can be imposed for the
offence. Of particular significance is the fact that the collection of DNA is a direct and almost
automatic consequence of the criminal file.
7.
The State Party acknowledges, in this respect, that the Act does not distinguish
between children and adults and applies to all children over 12 years of age (para. 6.8). The
aim of the DNA Testing Act is to assist in the prevention, investigation and prosecution of
offences committed by convicted persons and so the collection of DNA material serves a
legitimate purpose – the investigation of criminal offences – and protects the rights and
freedoms of others such as the victims of serious violent and sexual offences (para. 6.2).
Which is hardly the case of the author, since his offence is of a minor gravity.
8.
The State Party further recognizes that, although tissue samples may not be collected,
even for serious offences, it is only in exceptional cases, including cases where it is actually
impossible for the person to reoffend. And there is only limited weighing up of the interests
by the public prosecutor before issuing the DNA collection order (para. 6.3).
9.
The convicted person can lodge an objection with the district court against the
determining and processing of his or her DNA profile, but the Act does not provide for a
remedy against the collection thereof as such (para. 6.4).
10.
The State Party recognizes it is not legally compulsory for a child or his/her legal
representative to sign the official report on DNA collection and that, although it is not
CCPR/C/120/D/2362/2014
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required by law, the parent or legal representatives of a convicted child and his/her counsel
may receive a copy of the order requesting the DNA collection and an information brochure
explaining that the offender has the right to object to the determination of his/her DNA profile
(para. 6.10).
11.
I am therefore of the view the State Party took take into due consideration neither the
age of the author nor the minor gravity of his offence in the process leading up to the decision
to collect his DNA samples, nor the fact he was a first-time offender. And during the
collection of the DNA samples, a direct and almost automatic result of the criminal
proceedings, the author, a child of only 15 years of age, was not even informed of the
possibility of objecting to the sample being collected by a police officer, or of the possibility
of being accompanied by a legal representative (para. 10.10).
12.
I fully join the Committee’s reasoning that children differ from adults in their physical
and psychological development, and their emotional and educational needs. And that, as
provided for, among others, in article 14 (4) of the Covenant, States Parties have the
obligation to take special measures of protection. 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 (para. 10.10), which the State Party manifestly failed to take into
consideration in the present case.
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Annex III
[Original: English]
Individual opinion of Yuval Shany (partially concurring, partially
dissenting)
1.
I regret not being able to fully share the reasoning offered by the majority of the
Committee, underlying its finding that the State Party violated the author’s rights under
article 17 of the Covenant.
2.
I fully support the proposition that the best interests of the child should be a primary
consideration in the administration of juvenile justice and that due weight should be given to
the special physical, psychological, emotional and education needs of children (para. 10.10
of the Committee’s Views). I am therefore of the view that the State Party should have
afforded the author special measures of protection during the process of collecting his DNA
sample, including ensuring his ability to object to the collection of the sample by a police
officer and his right to be accompanied during the collection by a legal representative. I
accept that the State Party appears to have failed to meet this “special protection” standard –
the State did not rebut the author’s claim that neither he nor his legal representative were
informed of his right to object to the collection of the DNA sample by a police officer – and
that, as a result, the application to the author of a mouth swab in order to collect the sample
may have resulted, in the circumstances of the case, in a violation of article 17 of the
Covenant.
3.
I am, however, unpersuaded by the holding by the majority that the very decision to
collect and store the author’s DNA sample fell short of the above-mentioned “special
protection” standard due to the author.
4.
Although the Dutch DNA Testing Act does not distinguish between juvenile and adult
offenders, such a distinction is inherent in its application. Since it applies to offenders who
been convicted of a serious offence (entailing a maximum penalty of no less than four years),
and with regard to whom a sentence involving a deprivation of liberty had been imposed, it
only applies to juvenile offenders whose conduct was deemed by the juvenile court to be
sufficiently serious to warrant deprivation of liberty under the legal standards applied by
juvenile justice system. It has not been alleged to us that the age of the author was not given
due consideration by the juvenile court in determining the author’s sentence (which appears
to have been a lenient one) and, by extension, in determining the applicability of the DNA
Testing Act to him.
5.
Furthermore, the author has not been able to refute the State Party’s claim (para. 6.8)
that domestic courts can sustain objections to the collection of DNA samples of juvenile
offenders based on their age and the circumstances of the offence, and have done so in the
past. It is also uncontested that a domestic court considered whether the age of the author
constituted an exceptional circumstance warranting an exemption from the application of the
Act and came to the conclusion that it did not (para. 2.4).
6.
I am therefore unable to accept the majority’s holding that the age of the author was
not taken into consideration by the State authorities in the process leading up to the decision
to collect his DNA samples.
7.
In addition, no information had been provided to us that should cause us to question
the holding of the European Court of Human Rights, according to which the DNA database
retained by the Netherlands contains adequate privacy safeguards (the database comprises
encoded data stored anonymously and is used only to resolve future crimes), even when
applied to minors.1
1 European Court of Human Rights, W. v. the Netherlands, decision, 20 January 2009.
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8.
As a result, I do not consider it established that the balance struck by the State Party
in the particular circumstances of the case between the need to protect the public from
recidivist criminals and the need to afford minors special privacy protections commensurate
with their age was unreasonable. Thus, I do not support the conclusion of the Committee that
the very decision to collect from the author DNA samples violated his rights article 17 of the
Covenant.