Views of the Human Rights Committee of 18 July 2017 in the case of N.K. v. the Netherlands (communication No. 2326/2013).
In 2013, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Netherlands.
Subject of the message: mandatory DNA examination of a child in conflict with the law.
Substantive issue: arbitrary or unlawful interference with privacy; due process guarantees for children in conflict with the law.
Legal positions of the Committee: The Committee recalls that...The intervention provided for by law must comply with the provisions, objectives and objectives of the International Covenant on Civil and Political Rights and be reasonable in the specific circumstances. The concept of "arbitrariness" includes elements of impropriety, injustice, lack of predictability and due process, along with elements of reasonableness, necessity and proportionality. Even though the protection of private life in society cannot be absolute, the competent State authorities should be able to request only information concerning the private life of an individual, the receipt of which is necessary in the interests of society, as understood in the Covenant. Even with regard to interference that is consistent with the Covenant, the relevant legislation should specify in detail the specific circumstances in which such interference may be permitted. The decision to authorize such an intervention should be made only by a specific body provided for by law, and strictly individually (paragraph 9.5 of the Considerations).
The Committee considers that children differ from adults in their physical and psychological development and in their emotional and educational needs. As provided for, inter alia, in articles 24 and 14 (paragraph 4) of the Covenant, States parties are obliged to take special protective measures (See Berezhnoy v. the Russian Federation, Views adopted on October 28, 2016, paragraph 9.7.). In particular, in all decisions taken in the context of the administration of justice on In cases of minors, the main consideration should be the best interests of the child. Particular attention should be paid to the need to protect the privacy of children in criminal proceedings (paragraph 9.10 of the Views) (See S. and Marper v. United Kingdom, paragraph 124.).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's argument that her DNA testing procedure constitutes arbitrary interference with her personal life in violation of article 17 of the Covenant. In particular, she claims that neither her age nor the nature of the crime for which she was convicted were taken into account when the Prosecutor General issued a DNA analysis order; that orders for DNA analysis are issued automatically without assessing the special circumstances of a particular case and that the subject of the appeal does not include the sampling itself (paragraph 9.2 of the Considerations).
The Committee considers that the collection of DNA material for the purposes of analysis and storage of the collected material in a database that can be used in the future for criminal investigation purposes is a sufficiently intrusive measure and therefore constitutes an "interference" with the author's personal life in accordance with article 17 of the Covenant. Even if, as the State party points out, the author's DNA profile was later destroyed as a result of a new court verdict on appeal, the Committee considers that interference with the author's personal life has already occurred. The question is whether such interference is arbitrary or unlawful under article 17 of the Covenant (paragraph 9.3 of the Views).
The Committee agrees with the following conclusions of the European Court of Human Rights contained in its judgment S. and Marper v. United Kingdom, Judgment of December 4, 2008, paragraphs 72-73: "...In addition to the highly personal nature of the cell samples, the Court notes that they contain highly sensitive information about an individual, including information about his or her health. In addition, the samples contain a unique genetic code that is of great importance both for this person himself and for his relatives." "Given the nature and volume of the personal data contained in the cell samples, their preservation in itself should be considered an encroachment on the right to respect for the privacy of the individuals concerned."
The Committee takes note of the State party's argument that DNA analysis, regulated by the Dutch DNA Analysis Act, has a legitimate purpose, namely the investigation, prosecution and judicial review of serious criminal offences and the protection of the rights of others, including potential victims of violence or sexual crimes. It is proportionate, given that it provides minimal intervention, since the sample is taken by the least invasive method; the sample is stored anonymously for a limited period of time; This procedure applies only to persons convicted of crimes of a certain severity; and it is necessary in a democratic society, given the lack of other equally effective means of preventing and investigating such crimes (paragraph 9.4 of the Considerations).
In the present case, the Committee notes that on 18 March 2009, the author was sentenced to 36 hours of community service for verbal abuse and theft. On the same day, the District Attorney ordered an analysis of her DNA, and a tissue sample was taken on April 8, 2009. Although the State party provided explanations regarding the content and general application of the Law on DNA Analysis, it did not give, in light of the legitimate purpose stated by the State party, the reason for the mandatory DNA analysis of the author, taking into account her participation in criminal acts and the nature of these acts (paragraph 9.6 of the Considerations).
The Committee notes the author's statement that, in accordance with the DNA Analysis Act, DNA analysis orders are issued automatically in respect of persons who have received a sentence of imprisonment, detention in a juvenile correctional institution or an alternative punishment for offenses of such gravity for which pre-trial detention can be imposed. The State party recognized that the Law only provides for a limited weighting of interests by the public Prosecutor before issuing a decision on the selection of a tissue sample. The Committee...Notes that, although there are exceptions to DNA testing in accordance with article 2, paragraph 1 (b), of the Law, they are very narrowly worded and do not include, for example, consideration of the age of the offender, as recognized by the State party. According to the State party, article 2, paragraph 1 (b) of the Law applies only in exceptional cases, for example, when the person concerned cannot commit a relapse in practice (for example, due to bodily injury) (paragraph 9.7 of the Considerations).
The Committee...Notes that this law provides remedies not in relation to the sampling of tissue itself, but only in relation to the determination and processing of data on the DNA profile of a person. The State party argues that the person concerned may apply for a civil injunction challenging the selection of a tissue sample on the grounds that, by taking a sample for DNA analysis, the State is committing an unlawful act. However, the State party has not proved that such a remedy would be effective, given, in particular, that the sampling of tissue is "lawful" under domestic law. In addition, the Committee notes that if the court decides to reject a protest against the processing of a person's DNA profile data, an appeal is not possible (paragraph 9.8 of the Views).
The Committee takes note of the State party's position that the selection of a tissue sample involves very little interference with privacy, since the tissue sample and DNA profile are encrypted and stored anonymously. However, the Committee...Notes that the tissue sample and DNA profile are stored for 30 years in the case of serious crimes and for 20 years in the case of less serious offenses (paragraph 9.9 of the Considerations).
The Committee takes note of the State party's argument that the Law on DNA Analysis does not distinguish between children and adults, since there is no reason to make a legal distinction between them for the purpose of preventing, investigating and prosecuting criminal offences, and that this law is not contrary to the best interests of the child...As the author explains, her age was never taken into account, including during the entire tissue sampling process, when she was not informed about the possibility of protesting the sampling by a police officer and that she could have been accompanied by her legal representative (paragraph 9.10 of the Considerations).
The Committee considers that, although the interference with the author's private life did not constitute a violation of domestic law, it was not proportionate to the legitimate purpose of preventing and investigating serious crimes. The Committee therefore concludes that this interference was arbitrary and constituted a violation of article 17 of the Covenant (paragraph 9.11 of the Views).
The Committee's conclusions: The facts presented reveal a violation of article 17 of the Covenant (paragraph 10 of the Views).