VAN DER VELDEN v. THE NETHERLANDS
Inadmissible
The applicant, Mr Hendrik Jan van der Velden, is a Netherlands national who was born in 1965 and lives in Dordrecht. He was represented before the Court by Mr G. van Buuren, a lawyer practising in Weert. On 22 April 2003 the Roermond Regional Court (arrondissementsrechtbank) found the applicant guilty of having committed five bank robberies and of having stolen four cars. It convicted him of extortion and theft by means of breaking and entering, and sentenced him to six years’ imprisonment. It further ordered his confinement in a custodial clinic (terbeschikkingstelling met bevel tot verpleging van overheidswege). In its decision to issue this order, the Regional Court had regard to two reports drawn up by a neuropsychologist and a psychiatrist, according to whom the risk of the applicant reoffending was high. In view of the applicant’s extortion conviction, and pursuant to section 8 in conjunction with section 2, subsection 1, of the DNA Testing (Convicted Persons) Act (Wet DNA-onderzoek bij veroordeelden; “the Act”), the public prosecutor, on 8 March 2005, ordered that cellular material be taken from the applicant – who was at that time detained in a penitentiary institution in Dordrecht – in order for his DNA profile to be determined. A mouth swab was taken from the applicant on 23 March 2005. The applicant lodged an objection (verweerschrift) against the decision to have his DNA profile determined and processed, that is, entered into the national DNA database. He submitted that his DNA profile had never played any role in the investigation of the offences of which he had been convicted. Although it was true that he had threatened to use violence, he had never actually done so. He was therefore of the opinion that his DNA profile could not serve any useful purpose in the prevention, detection, prosecution and trial of criminal offences he might have committed. According to the applicant, the determination and storage of his DNA profile amounted to the imposition of an additional penalty after he had already been convicted, and moreover on the basis of a law which was not in force at the time of his conviction. He alleged a breach of Article 7 of the Convention. He further relied on the right to respect for his private life as guaranteed by Article 8 of the Convention, arguing that, even having regard to the interests of public order and of the prevention of crime, there was no strict necessity in his case for the authorities to have his DNA profile at their disposal. Finally, there was no single good reason why the applicant had to be distinguished from other persons in the Netherlands who were not required to have their DNA profile entered into the national database. To this extent there was thus discrimination as prohibited by Article 14 of the Convention. Having heard the public prosecutor and counsel for the applicant, the Roermond Regional Court dismissed the objection on 21 April 2005. It considered that the exception contained in section 2(1)(b) of the Act (see below) did not apply: the applicant had a lengthy criminal record and two confinement orders imposed on him were still in place. It did not follow from the fact that no DNA profile of the applicant had been drawn up in previous investigations that his DNA could not serve any investigatory interests at the present time. Moreover, it could not be maintained that the risk of the applicant reoffending was so negligible that on that basis the compilation and processing of a DNA profile could not possibly serve any useful purpose. The Regional Court, noting that at the hearing counsel for the applicant had conceded that the obligation to provide cellular material did not constitute a punishment, considered that the applicant could not successfully rely on the principle of nulla poena sine lege. It further held in this connection that the impugned measure did not place the applicant in a more disadvantageous position than that to which he had exposed himself when he committed a criminal offence, since the seriousness of the intervention (the manner in which cellular material was taken) was not sufficiently burdensome. Although the entry of a DNA profile in a DNA database might lead to a more speedy prosecution of the applicant in respect of criminal offences (to be) committed by him, this did not justify protecting him against a retroactive application of the Act. The Regional Court was further of the opinion that the impugned order was not in breach of Article 8 of the Convention. The order had been given in accordance with the law and, bearing in mind that the aim of the Act was to be able to solve more crimes and to prevent recidivism as much as possible, it was necessary in the interests of public safety, the prevention of criminal offences and the protection of the rights and freedoms of others. Finally, the Regional Court found that there was no question of a violation of the principle of equality, since the Act provided that a DNA profile would be compiled of every convicted person who satisfied the criteria laid down in the Act. The applicant was no worse off than a person whose DNA profile was not included in the database, given that the fact that perpetrators of criminal offences could be traced sooner if their DNA profile was contained in the database did not constitute an interest worthy of legal protection, and since neither category were allowed to commit criminal offences. No appeal lay against this decision. The statutory maximum prison sentence is nine years for the offence of extortion, and six years for theft by means of breaking and entering (Articles 317 and 311 of the Criminal Code – Wetboek van Strafrecht). The Criminal Code provides for the following principal penalties (hoofdstraffen): imprisonment, detention, and fine; and for the following additional penalties (bijkomende straffen): deprivation of certain rights, forfeiture, and publication of the court judgment. Furthermore, the following measures (maatregelen) may be imposed pursuant to the Criminal Code: withdrawal from circulation of seized goods, confiscation of illegally obtained advantage, order to pay compensation, committal to a psychiatric hospital, a TBS order (terbeschikkingstelling; see Brand v. the Netherlands, no. 49902/99, §§ 23-24, 11 May 2004), and placement in an institution for persistent offenders. The DNA Testing (Convicted Persons) Act came into force on 1 February 2005. Section 2(1) of the Act requires the public prosecutor at the Regional Court that has given judgment at first instance to order a sample of cellular material to be taken from a person who has been convicted of an offence carrying a statutory maximum prison sentence of at least four years. Section 8(1) stipulates that the Act applies to persons on whom a custodial sentence or measure had been imposed at the time when the Act came into force, unless the validity of this sentence or measure had already expired at that time. According to the explanatory memorandum to the Act (Memorie van Toelichting; Lower House of Parliament, no. 28,685, 2002-03 session, no. 3), the seriousness of the offence(s) involved justified determining and processing a DNA profile of the convicted person in order to contribute to the detection, prosecution and trial of criminal offences committed by him or her and, if possible, to prevent him or her from committing criminal offences again. Section 2(1)(b) sets out an exception: no order for 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. It appears from the explanatory memorandum to this provision that the first exception of subsection (1)(b), relating to the nature of the offence, may apply when a person has been convicted of a crime for the resolution of which DNA investigations can play no meaningful role; perjury or forgery, for instance. The second exception, relating to the special circumstances under which the offence was committed, may apply to a convicted person who is highly unlikely to have previously committed an offence in respect of which DNA investigation might be of use and who will not be able to do so in future, for example due to serious physical injury. It may also apply to the case of a woman who has never had any dealings with the law and who, after having been ill-treated by her husband for years, finally inflicts grievous bodily harm on him or kills him. Section 2(5) of the Act stipulates 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 Dutch Data Protection Agency (College Bescherming Persoonsgegevens) has been heard. The rules in question are set out in the DNA (Criminal Cases) Tests Decree (Besluit DNA-onderzoek in strafzaken). It regulates 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 the duration of the retention of a DNA profile and cellular material. This depends on the offence of which the individual concerned has been convicted. The data of persons convicted of an offence carrying a statutory sentence of six years or more is retained for thirty years. For less serious offences carrying sentences of up to six years, cellular material and DNA profiles may be retained for a maximum period of twenty years. If execution of the order for the taking of cellular material so requires, the public prosecutor may issue a warrant for the arrest of the individual concerned (section 4(1)). Clothing worn, and objects carried, by the arrested person may be examined if this is necessary for the establishment of his or her identity. For the same purpose, the prosecutor may also order the detention of the arrested person for two periods of six hours each (outside the hours between 12 midnight and 9 a.m.). Once the identity of the arrested convicted person has been established, he or she may be detained for a maximum of six hours in order for the cellular material to be taken (section 4(1), (5) and (6)). The individual 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, required by section 6(3) of the Act, that sufficient cellular material has been collected for a DNA profile to be determined and processed (section 7(1)).