GENEVA - The Kingdom of the Netherlands violated the right to privacy of a child by collecting his cellular material and storing his DNA profile after he was convicted of theft-related offences at the age of 14, the UN Human Rights Committee has found.
The Committee published its Views after considering a complaint brought by G.T.V.B., a Dutch national who was convicted by a juvenile court and sentenced to 40 hours of community service, half of which was suspended. Under Dutch law, DNA testing orders were issued automatically for convicted persons who had received certain sentences, and the law did not distinguish between adults and children. Accordingly, following the conviction, the public prosecutor automatically ordered the collection of the complainant's cellular material for DNA testing, and his DNA profile was processed and stored in the national DNA database, where such profiles could be retained for up to 30 years in cases regarded as serious.
The complainant appealed the DNA testing order before domestic courts, arguing that the measure was disproportionate given his age, the nature of the offences and the sentence imposed. His objection was dismissed.
"Children differ from adults in their physical and psychological development, as well as in their emotional and educational needs," said Vice-Chair of the Committee Hélène Tigroudja. "That is why, in juvenile justice, their best interests must be a primary consideration, and particular attention must be given to protecting their privacy. In the present case, the protection of G.T.V.B.'s privacy, convicted as a child for a minor offence, did not meet his best interests, and the safeguards of his right were not sufficient."
The Committee acknowledged that DNA collection and retention may serve legitimate criminal justice aims and that the measure is lawful under Dutch law. However, it recalled that legality and legitimacy of such measure are not enough, and any interference with privacy must also be reasonable, necessary and proportionate in the circumstances of the case, especially when the offender is a child.
Applying those principles, the Committee considered that the processing and storing the complainant's DNA profile was not proportionate, given his age at the time of the offences, the nature of his sentence and the excessive retention period. It concluded that the interference with the complainant's privacy was arbitrary and violated the International Covenant on Civil and Political Rights, which protects against arbitrary or unlawful interference with the right to privacy.
"Children in conflict with the law are entitled to special protection," Tigroudja said. "DNA retention regimes must not treat children in the same way as adults without an individual and robust case-by-case assessment of the necessity and proportionality of the collection and storage measures."
The Committee called on the State Party to provide the complainant with an effective remedy, including adequate compensation for moral and material harm, reimbursement of any court fees and legal expenses, and removal of his DNA profile and related data from the national DNA database.
It also requested the Netherlands to take legislative and practical measures to prevent similar violations in the future, and to report back within 180 days on the steps taken to implement the Committee's Views.
