Van der Velden v. the Netherlands (dec.)

Information Note on the Court’s case-law No. 92

December 2006

Van der Velden v. the Netherlands (dec.) - 29514/05

Decision 7.12.2006 [Section III]

Article 8

Article 8-1

Respect for private life

Taking of a DNA samplefrom a convicted person and storage of hisDNA profile in national database for thirty years: inadmissible

Article 7

Taking of DNA samplefrom convicted person and storage of hisDNA profile in national DNA database for thirty years: article 7 not applicable

Article 14

Discrimination

Taking of a DNA samplefrom a person convicted of a more serious offence, with a view to storing hisDNA profile in a national database:inadmissible

The applicant was convicted and sentenced to imprisonment for several robberies and car thefts. In accordance with the DNA Testing (Convicted Persons) Act, a sample of cellular material was taken from him in prison, via a mouth swab, in order for his DNA profile to be determined. DNA profiles which are legally authorised are entered into the national DNA database (with the aim of tracing perpetrators of criminal offences more quickly) and are only to be processed for the purpose of the prevention, detection, prosecution and trial of criminal offences that the convicted person has previously committed or may commit in the future. The duration of the storage of a DNA profile and cellular material depends on the offence for which the individual concerned has been convicted. A statutory maximum prison sentence of at least four years is required for the taking of a sample. The data of persons convicted of an offence carrying a statutory sentence of six years, as in the applicant's case, is stored for thirty years. The applicant unsuccessfully objected to having his DNA profile determined and entered into the national database. The domestic court was of the opinion that the obligation to provide cellular material did not constitute a punishment. Nor did the impugned measure breach Article 8 since, by helping to solve more crimes and to prevent recidivism as much as possible, it was necessary in the interest of public safety, the prevention of criminal offences and the protection of the rights and freedoms of others.

Inadmissible under Article 7 – The order given by the public prosecutor to take a sample of cellular material from the applicant and the compilation and storage of the applicant's DNA profile, based on the DNA Testing (Convicted Persons) Act which entered into force in 2005, did not amount to a “penalty” within the meaning of Article 7: incompatibleratione materiae.

Inadmissible under Article 8 – The taking of a mouth swab in order to obtain cellular material from the applicant, the systematic retention of that material and the compiled DNA profile constituted an interference with his right to respect for private life. It served the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others, even if DNA played no role in the investigation and trial of the offences committed by the applicant. The obligation on all persons who have been convicted of offences of a certain seriousness to undergo DNA testing is not unreasonable. The measures can be said to be “necessary in a democratic society”, considering the substantial contribution which DNA records have made to law enforcement in recent years and because the applicant may also reap a certain benefit from the inclusion of his DNA profile in the national database in that he may thereby be rapidly eliminated from the list of persons suspected of crimes in the investigation of which material containing DNA has been found: manifestly ill-founded.

Inadmissible under Article 14 – The applicant complained that the measure at issue constituted discrimination in that there was no good reason why he should be treated differently from other persons in the Netherlands who were not obliged to have their DNA profile determined and included in the national database. Manifestly ill-founded, regard being had, in particular, to the aim of the DNA testing of a specific category of convicted person as described by domestic law.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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