PERUZZO AND MARTENS v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
1. The applicant in the first case, Mr Antonio Peruzzo (hereinafter also referred to as “the first applicant”), is an Italian national, who was born in 1957 and lives in Freienbach, Switzerland. He was represented before the Court by the law firm Endriß, Müller, Malek, Phleps & colleagues, Freiburg, Germany. 2. The applicant in the second case, Mr Uwe Martens (hereinafter also referred to as “the second applicant”), is a German national, who was born in 1976 and lives in Nuremberg. 4. The instant applications relate to decisions by the domestic courts ordering the taking of cellular material from the applicants, who had both been convicted of criminal offences in the past. The measures were ordered pursuant to Article 81g of the Code of Criminal Procedure (Strafprozessordnung - see Relevant domestic law below) outside pending criminal proceedings at the prosecution authorities’ request with a view to determining the applicants’ DNA profiles for identification purposes on the occasion of future criminal proceedings. 5. The courts ordered in each case that in the event the applicants should refuse to voluntarily provide cellular material by means of a saliva sample, a blood sample was to be taken from them by a doctor in accordance with Article 81a § 1 of the Code of Criminal Procedure (see Relevant domestic law below). They further specified that any cellular material obtained from the applicants had to be handed over to the expert in charge of its examination without disclosing the applicants’ identity, that the sample was to be used exclusively for the molecular genetic examinations referred to in Article 81g of the Code of Criminal Procedure and that it was to be destroyed without delay once it was no longer required for establishing the applicants’ DNA profiles. 6. In its related decision of 2 February 2007 with respect to Mr Peruzzo the Freiburg District Court noted that the first applicant had been convicted by a judgment of the Karlsruhe Regional Court dated 25 January 2006 of six counts of drug trafficking and been sentenced to an aggregate prison sentence of five years and nine months. On four occasions the crime had been preceded by the offence of illicit importation of drugs and on two occasions the first applicant had in addition instigated the illicit importation of drugs. The District Court further pointed to two previous convictions of Mr Peruzzo in Switzerland for having infringed the Swiss Narcotics Law. It referred in this context to judgments by the Horgen District Court (Bezirksgericht) dated 10 February 1982 and by the Schwyz Canton Criminal Court dated 22 April 2005 imposing a prison sentence of two years and 8 months and a suspended prison sentence of 15 months respectively. 7. In view of the seriousness of the offences committed in the past and the resulting negative criminal prognosis for the first applicant, the Freiburg District Court found that the order to take a DNA sample from him and the execution of such measure were proportionate. 8. By a decision of 25 April 2007 the Freiburg Regional Court, endorsing the Freiburg District Court’s decision, dismissed the first applicant’s related appeal and held that the conditions for the taking of an DNA sample pursuant to Article 81g § 1 of the Code of Criminal Procedure were met in the instant case. In the Regional Court’s opinion the considerable length of the prison sentence imposed on the first applicant by the Karlsruhe Regional Court in 2006 showed that the underlying drug offences constituted serious crimes in the meaning of the said provision. In this connection and in particular in view of the considerable amount of drugs that had been trafficked it was irrelevant that the applicant had “only” dealt with marihuana. The Regional Court further found that there were grounds to assume that criminal proceedings concerning serious offences would have to be conducted against the applicant in the future. The first applicant’s negative criminal prognosis followed in particular from the fact that his conviction in 2006 had not only related to a single spontaneously committed offence of drug trafficking but to a series of offences committed over the period from May 2004 to January 2005. Moreover, he had previously been convicted of similar offences in Switzerland. The fact that his first conviction by the Horgen District Court dated back as long as 1982 did not put into question his negative criminal prognosis. It had been demonstrated by the judgment of the Schwyz Canton Criminal Court dated 22 April 2005 that the applicant had committed further drug-related offences in the period from 2002 to 2003 in Switzerland, i.e. prior to his conviction in Germany in 2006. The Regional Court further specified that the applicant’s potential expulsion to Switzerland did not have an impact on its assessment of the case. Pursuant to German criminal law crimes of the kind at issue were subject to German jurisdiction even when committed abroad. Moreover, the fact that an individual had his place of residence abroad did not prevent him from committing offences in Germany. 9. By written submissions to the Freiburg Regional Court dated 9 May 2007 the first applicant argued that there was nothing to indicate that he would commit further offences similar to the ones that had been at the origin of his previous convictions. He invoked in particular that the crimes referred to by the Freiburg District Court in its decision of 2 February 2007 dated back several years and that he had already served prison sentences of a considerable duration in this respect. Furthermore, since he was supposed to be expelled to Switzerland after having served half of his prison sentence, it was unlikely that he would reoffend in Germany and take the risk of having to serve the residual term of his prison sentence as a consequence. 10. On 11 May 2007 the Freiburg Regional Court held that the first applicant’s submissions did not provide any additional arguments that would require it to deviate from its previous decision of 25 April 2007. 11. By a decision of 14 August 2007 (file no. 2 BvR 1340/07) the Federal Constitutional Court dismissed the applicant’s constitutional complaint without providing reasons. 12. In its decision of 24 May 2012 with respect to Mr Martens the Nuremberg District Court, referring to the latter’s criminal record since 1999, held that the repeated commission of offences by the second applicant in the past had reached a degree of unlawfulness equal to the commission of an offence of considerable significance within the meaning of Article 81g of the Code of Criminal Procedure. In 1999 the second applicant had been convicted by the Nuremberg District Court of having caused bodily harm by dangerous means (gefährliche Körperverletzung) and had been sentenced to a suspended prison sentence of seven months. By a judgment of 18 May 2006 the Erlangen District Court had found him guilty of two counts of attempted coercion (versuchte Nötigung) and had imposed a fine of 900 euros payable in 60 daily instalments. On 19 March 2008 the same court had convicted the second applicant of a further offence of having caused bodily harm by dangerous means and sentenced him to a suspended prison sentence of one year. Finally, by a judgment of the St. Pölten Regional Court (Landgericht), Austria, of 12 May 2011, he had been found guilty of having persistently stalked a woman and had been sentenced to ten months’ imprisonment. As regards the two incidents involving bodily harm in 1999 and 2008 the Nuremberg District Court specified that the second applicant had sprayed tear or pepper gas into his respective victims’ faces from a short distance leaving one victim with painful skin irritations and the other with an eye inflammation. 13. In the Nuremberg District Court’s opinion the manner in which the offences had been committed showed that the second applicant had a tendency to compromise considerably the physical well-being of others and that further serious criminal offences were to be expected from him in the future. The court further found that having regard to the intervals in which the offences had been committed, it could be expected that the second applicant would repeatedly commit further offences similar to the ones that had been at the origin of the criminal proceedings instituted against him in the past. Having regard to the nature of the offences at issue it was conceivable that DNA traces would be left at the scene of a future crime and the measure ordered by the court was thus justified and necessary for the purpose of establishing identity and gender on the occasion of future criminal proceedings. 14. By written submissions dated 26 May 2012 the applicant appealed the District Court’s decision. He maintained in particular that the offences committed by him in the past had not been of a gravity that justified an interference with his personal rights under Article 81g of the Code of Criminal Procedure. He further complained that the District Court had not complied with his request to hear him in person and had not adequately reasoned its decision. 15. By a decision of 5 July 2012 the Nuremberg-Fürth Regional Court dismissed the appeal holding that the conditions for the taking of a DNA sample pursuant to Article 81g of the Code of Criminal Procedure had been clearly met in the instant case and that the District Court’s order had consequently been proportionate. The Regional Court held that, firstly, the two incidents involving bodily harm that had been at the origin of the second applicant’s convictions in 1999 and 2008 constituted serious offences in the meaning of the said provision. On each of these occasions the second applicant had shown aggressive behaviour towards third persons without having been particularly provoked by the latter. Both offences had been committed in a similar way and demonstrated a significant criminal energy on the part of the second applicant and his potential for aggression. The Regional Court further recalled that Article 81g of the Criminal Code put the repeated commission of offences on an equal footing with the commission of a serious crime for the purpose of justifying the taking of a DNA sample. The Regional Court pointed out that the legislator had specified in this context that repeated offences in the context of so-called stalking of the type that had been at the origin of the second applicant’s conviction by judgment of the St. Pölten Regional Court in 2011, constituted an example where the repeated commission of an offence reached a degree of unlawfulness that was equal to the commission of a serious offence. The second applicant’s previous convictions further showed that he had a tenacious and incorrigible character which was also reflected in his partly confused and incomprehensible submissions to the Regional Court in the instant proceedings. Having regard to the second applicant’s numerous past convictions, his personality and the circumstances under which the offences had been committed, the Regional Court found that there clearly remained a risk that criminal proceedings concerning similar offences would have to be conducted against him in the future. 16. On 17 July 2012 the Erlangen District Court, at the prosecution authorities’ request, revoked the suspension of the second applicant’s prison sentence imposed by its judgment dated 19 March 2008 (see paragraph 12 above). With reference to the conviction for stalking by the St. Pölten Regional Court dated 12 May 2011 which had meanwhile become final, the District Court argued that the fact that the second applicant had reoffended in the course of his probationary period demonstrated that a suspended sentence was not sufficient to counter the risk of recidivism. 17. By a decision of 29 August 2012 (file no. 2 BvR 1934/12) the Federal Constitutional Court declined to consider the applicant’s constitutional complaint of 24 August 2012 against the Nuremberg-Fürth Regional Court’s decision of 5 July 2012 without providing reasons. It further held that, as a consequence, there was no need to decide on the applicant’s request for interim measures. 18. While the applicants’ submissions suggest that the court orders were subsequently executed and DNA samples taken from each of them, neither of the applicants has specified on which date the intervention occurred and whether the samples were obtained by means of saliva or blood samples. 19. Article 81a to f of the German Code of Criminal Procedure (Strafprozessordnung) provide for the taking of DNA samples for the purpose of convicting suspects within the scope of pending criminal proceedings. By contrast, Article 81g regulates the taking of cellular material from suspects and convicts with a view to determining their DNA profile for use in future criminal proceedings. Article 81g § 1 in its current version, as also applicable at the time of the proceedings at issue, provides for such measure if a person is suspected of having committed or has been convicted of a criminal offence of considerable significance (Straftat von erheblicher Bedeutung) or of a crime against sexual self-determination and in the event the nature of the offence or the way it was committed, the personality of the concerned person or other information provide grounds for assuming that criminal proceedings will be conducted against him or her in future in respect of a criminal offence of considerable significance. Under these conditions cellular material may be obtained from the person concerned and subjected to molecular and genetic examination with a view to determining his or her DNA profile (DNA-Identifizierungsmuster) or gender for identification purposes in future criminal proceedings. It is further specified in the provision that the repeated commission of criminal offences may reach a degree of unlawfulness (Unrechtsgehalt) that is tantamount to a criminal offence of considerable significance. This alternative ground for the taking of cellular material has been introduced into Article 81g § 1 by the Act on the revision of forensic DNA-analysis dated 12 August 2005 (Gesetz zur Novellierung der forensischen DNAAnalyse, Federal Gazette I, p. 2360). According to the explanatory memorandum to the Act the repeated commission of offences does not automatically reach the same level of significance as a serious crime. An order for the taking of cellular material under this alternative is only admissible in the event the circumstances of a particular case taken together provide evidence that the repeated commission of offences reaches the same degree of unlawfulness as a serious crime in the meaning of the provision. While, for instance, repeated fare evasion for public transport would as a rule not reach such threshold, this could, by contrast, be the case in the event of repeated trespassing in the context of stalking. 20. The second paragraph of Article 81g stipulates that cellular material obtained may be used only for the aforementioned molecular and genetic examination and shall be destroyed without delay once it is no longer required for that purpose. Information other than that required for establishing the DNA profile or the gender may not be ascertained during the examination and tests to establish such information shall be inadmissible. Without the written consent of the person concerned, the taking of cellular material may be ordered only by a court and, in case of imminent danger (Gefahr im Verzug), by the public prosecution authorities including the officials assisting it (section 152 of the Courts Constitution Act). Without the written consent of the person concerned, the molecular and genetic examination of cellular material may be ordered only by a court. The related court order shall specify in each case the determining facts relevant to ascertaining the seriousness of the criminal offence at issue, the information giving rise to the assumption that the accused will be the subject of criminal proceedings in the future, as well as an evaluation of the relevant circumstances. 21. Pursuant to Article 81g read in conjunction with the second paragraph of Article 81f of the Code of Criminal Procedure the courts shall appoint the experts responsible for the examination of the DNA material and determination of DNA profiles. The experts have to meet certain requirements with a view to ensuring their independence from the investigating authority as well as their professional integrity. They shall provide for the technical and organisational safeguards to ensure that inadmissible molecular and genetic examinations and unauthorised access to data are excluded. The cellular material to be examined shall be given to the expert with no indication of the name, address or date or month of birth of the data subject. 22. Article 81g § 5 states that the data obtained may be stored at the Federal Criminal Police Office (Bundeskriminalamt) and be used in accordance with the relevant provisions of the Federal Criminal Police Office Act (Bundeskriminalamtgesetz). Data may only be transmitted for the purpose of criminal proceedings, preventive aversion of dangers (Gefahrenabwehr) or international legal assistance in respect thereof. 23. In the event of the taking of cellular material by means of a blood sample Article 81a of the Code of Criminal Procedure apples mutatis mutandis. The taking of blood samples is to be effected by a physician in accordance with the rules of medical science, provided no detriment to the concerned person’s health is to be expected. Blood samples or other body cells taken may be used only for the purposes set out in the Code of Criminal Procedure and shall be destroyed without delay as soon as they are no longer required for such purposes. 24. Since 1998 the Federal Criminal Office maintains a national DNA database in which DNA profiles obtained in compliance with Articles 81a to g of the Code of Criminal Procedure are stored. The Federal Criminal Police Office Act contains rules on the storage and use of such DNA profiles. According to section 2 of the Federal Criminal Police Office Act, the Federal Criminal Police Office in its capacity as central agency for police information and intelligence in connection with the prevention and prosecution of criminal offences of federal, international or considerable significance, shall collect and analyse all relevant information for carrying out such task. Pursuant to Section 8 § 5 of the Act a convict’s personal data may be saved in files for the use in future criminal proceedings in the event particular circumstances give reason for believing that the person concerned will commit criminal offences of considerable significance. Personal data taken from an individual suspected of having committed a criminal offence have, as a rule, to be deleted in the event the proceedings against the concerned person have been definitely discontinued or once the suspect has been acquitted (section 8 § 3). The data compiled in the national DNA database may be made available to the Federal and Länder police authorities and according to section 11 of the Act the public prosecution authorities may retrieve information from the database for the purpose of administering criminal justice. Section 32 of the Federal Criminal Police Office Act stipulates that personal data saved in files have to be deleted once their storage has become inadmissible or in the event the retention of the data is no longer necessary for the performance of the Federal Criminal Police Office’ 25. By a judgment of 14 December 2000 (2 BvR 1741/99; 2 BvR 276/00 and 2 BvR 2061/00) the Federal Constitutional Court held that the provision of Article 81g of the Code of Criminal Procedure was constitutional. It emphasised that the scope of the provision was limited to the determination of a suspect’s or convict’s DNA profile for the purpose of establishing identity in future criminal proceedings and that the cellular material obtained in this respect had to be destroyed once the DNA profile was determined. The DNA profile as such did not allow for conclusions to be drawn as regards the personal characteristics of a concerned individual such as his or her hereditary dispositions, character traits or diseases and did not enable for an individual’s personal profile to be established. In the Constitutional Court’s opinion the core area of personality (Kernbereich der Persönlichkeit) that enjoyed absolute protection under constitutional law was thus not affected by the measures permitted under Article 81g. The Constitutional Court found, however, that the determination, retention and future use of DNA profiles constituted an interference with the constitutionally guaranteed right to self-determination over personal data (informationelles Selbstbestimmungsrecht). Any restriction of such right was only permitted if prescribed by law and in the event it was justified by an overriding public interest and complied with the principle of proportionality. The Constitutional Court specified in this respect that while Article 81g was not aimed at the prevention of future criminal offences, it did however facilitate the investigation of future crimes of considerable significance and thus served the proper administration of justice. The Constitutional Court further held that the provision was sufficiently precise to qualify as a law from a constitutional point of view. The term “criminal offence of a considerable significance” could be found in a number of provisions of the Code of Criminal Procedure and had been defined in the established case law of the domestic courts as comprising crimes of medium gravity (mittlere Kriminalität) which seriously compromised law and order and were of a nature that could considerably affect the population’s sense of legal certainty (Rechtssicherheit). The court finally held that the precautionary (“vorsorglich”) taking of evidence permitted under Article 81g did not infringe the principle of proportionality. The taking of such evidence could only be ordered in the event the concerned person had previously been convicted of an offence of considerable significance and in the event there were concrete indications that further proceedings concerning criminal offences of considerable significance were to be conducted against him or her in the future. Moreover, by strictly limiting the use of cellular material collected for the purposes defined in the Article and by making its destruction compulsory once the concerned person’s DNA profile was established, the legislator had provided for safeguards to prevent abuse of cellular material obtained. The Constitutional Court specified that when ordering a measure pursuant to Article 81g the domestic courts had to establish and clarify the circumstances of each particular case. In their assessment they had to take into account the available criminal files and records with respect to the person concerned and had to provide plausible reasons for their assumption that it was likely that the latter would commit further crimes of considerable significance in the future. 26. By a subsequent judgment dated 14 August 2007 (2 BvR 1293/07) the Federal Constitutional further held that the possibility of ordering the taking of a DNA sample in the event the repeated commission of criminal offences showed a degree of unlawfulness similar to the commission of a serious criminal offence - an alternative introduced by the Act on the revision of forensic DNA-analysis dated 12 August 2005 - did not give rise to concerns from a constitutional point of view. With reference to the explanatory memorandum to the said Act (see above paragraph 19), the Federal Constitutional Court noted that this alternative did not allow the domestic courts to automatically conclude that the repeated commission of offences justified an order for the taking of cellular material. By contrast, the domestic courts were obliged to have regard to the specific circumstances of the individual case and in particular the personality of the person concerned and the manner in which the offences had been committed. On this basis they had to proceed to an overall assessment of the degree of unlawfulness reflected in the offences committed and to be expected in the future while always observing the principle of proportionality in their decision-making. 27. For a summary of relevant Council of Europe and European Union legal instruments and an overview of relevant national legislation in a selection of Council of Europe member states, reference is made to the Court’s judgment in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 41 to 53, ECHR 2008.