Norges Høyesterett - 19-014740SIV-HRET

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Norges Høyesterett - 19-014740SIV-HRET
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Court: Norges Høyesterett (Norway)
Jurisdiction: Norway
Relevant Law:
Article 8 European Convention of Human Rights (ECHR)
Decided: 26.06.2019
Published:
Parties:
National Case Number/Name: 19-014740SIV-HRET
European Case Law Identifier:
Appeal from:
Appeal to: Unknown
Original Language(s): Norwegian
Original Source: Norges Høyesterett (in Norwegian)
Initial Contributor: n/a

The case concerns the validity of a decision to register the DNA profile of a person convicted of tax evasion and whether this is a disproportionate infringement of his/her privacy according to Article 8 ECHR.

English Summary[edit | edit source]

Facts[edit | edit source]

The person was sent to prison for tax evasion in the years 2001 to 2006. The district court has assumed that A withheld share gains together about NOK 4.7 million and assets of just over NOK 4.5 million from taxation. The tax benefit is stated in the judgment to be approximately NOK 1.5 million reduced income tax and NOK 53 000 in reduced wealth tax. A was further convicted of complicity to the fact that a partner in an investment partnership evaded more than NOK 700 000 in tax in the years 2003 to 2006. Finally, the person was convicted of having contributed to a total of three employees in the Eltek Group evading NOK 425 000 in tax in 2002.

On 31 October 2013, Økokrim decided that the person's DNA profile should be «registered in the identity register (DNA register), cf. the Attorney General's guidelines of 1 October 2013 ».

The person did not receive the decision until April 2016, and he then complained to the Attorney General.

Dispute[edit | edit source]

The Attorney General also discussed the relationship of Article 8 ECHR and the DNA registration. The guidelines of 15 August 2008 provided a threshold for registration which he did not consider to be in contrary to Article 8 ECHR. The person who´s DNA was registered claimed that his right to privacy has been infringed.

Holding[edit | edit source]

The registration of the person´s DNA was found to not be disproportionate. The ruling was issued with dissent 4-1.

The Supreme Court's majority (para. 23-106) highlighted in particular that he was convicted of a serious crime and that the threshold for registering a convicted felon was delimited in a sufficiently precise manner. The majority highlighted that the law in question opened for the DNA to be deleted pursuant to an assessment in the concrete, and that the law had detailed regulation concerning the access and access rights to the data, the right of access for the data subject, as well as regulating the storage of the data. In the opinion of the majority, this ensured appropriate safeguards and was proportionate.

The dissenting judge (para. 107-123) highlighted that although the conviction of him applied to serious matters, the probability that DNA registration in this type of offense will help to clarify later offenses, is small. There are doubts left that the registration is sufficiently relevant and necessary for the purpose. When in addition access is given to use the DNA register for purely civilian purposes, the limits of it are disproportionate and exceeded. On this basis, the registration should be deleted, and the person should be awarded legal costs for all instances. The DNA registration must therefore at all times be relevant and necessary based on the purpose with the registration. The use of the information for other purposes may also be important for the proportionality assessment.

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English Machine Translation of the Decision[edit | edit source]

The decision below is a machine translation of the Norwegian original. Please refer to the Norwegian original for more details.


Page 1
DOM
handed down on 26 June 2019 by the Supreme Court in department with
Judge Bergljot Webster
Judge Wilhelm Matheson
judge Per Erik Bergsjø
Judge Wenche Elizabeth Arntzen
Judge Sven-Jørgen Lindsetmo
HR-2019-1226-A, (case no. 19-014740SIV-HRET)
Appeal against the judgment of the Borgarting Court of Appeal on 14 November 2018
A
(Attorney John Christian Elden)
against
The State v / Ministry of Justice and Emergency Preparedness (Government Advocate - for trial
v / lawyer Knut-Fredrik Haug-Hustad)
Page 2
2
HR-2019-1226-A, (case no. 19-014740SIV-HRET)
VOTING
(1)
Judge Bergsjø: The case concerns the validity of a decision to register the DNA profile
a person convicted of tax evasion. The question is whether the registration is a
disproportionate encroachment on his privacy, cf. the European Convention on Human Rights
(ECHR) Article 8.
(2)
On 13 November 2012, A was sentenced to one year and six months in prison, of which six months
conditional, for violations of the Tax Assessment Act. He was also sentenced to pay a fine
225,000 kroner. Both A and the prosecution appealed, but the verdict became final after that
And withdrew his appeal.
(3)
The conviction first applied to tax evasion in the years 2001 to 2006. I
the sentencing premises, the district court has assumed that A withheld share gains
together about NOK 4.7 million and assets of just over NOK 4.5 million from
taxation. The tax benefit is stated in the judgment to be approximately NOK 1.5 million reduced
income tax and NOK 53,000 in reduced wealth tax. A was further convicted of complicity
to the fact that a partner in an investment partnership evaded more than NOK 700,000 in tax
in the years 2003 to 2006. Because the companion made voluntary correction and therefore did not become
punished, this amount was not taken into account in the sentencing of A. Finally, A
convicted of having contributed to a total of three employees in the Eltek Group evading
NOK 425,000 in tax in 2002.
(4)
On 31 October 2013, Økokrim decided that A's DNA profile should be «registered in
the identity register (DNA register), cf. the Attorney General's guidelines of 1 October 2013 ».
A did not receive the decision until April 2016, and he then complained to the Attorney General. The complaint did not lead
forward. In the decision of 21 June 2016, which is being tried in this case, the Attorney General justifies
rejected as follows:
"The verdict against A was handed down in 2012 and was final the same year. The assessment of whether he
shall be registered in the DNA register shall be made in accordance with the guidelines in force at the time
(given in letter 15 August 2008), see guidelines in letter 17 October 2013 point I last paragraph.
The threshold for registration according to the previous guidelines was somewhat higher than according to them
valid, but so that all who were sentenced to unconditional imprisonment for more than 60 days should
registered, see section III.2.2. A has been sentenced to one year unconditional imprisonment, and it follows from both
current and current guidelines that he must be registered. "
(5)
In the decision, the Attorney General also discussed the relationship to Article 8 of the ECHR
The guidelines of 15 August 2008 provided a threshold for registration which he did not consider to be in
contrary to Article 8. Furthermore, he made the following comment in connection with the European
Human Rights Court (EMD) Grand Chamber Decision 4 December 2008 S. and Marper v
United Kingdom :
The «decision… provides guidance on factors and considerations that must be weighed against each other in
the assessment of whether intervention is considered 'necessary in a democratic society'. These are
taken into account in the assessment of the Norwegian regulations. The said case concerns the registration of
fingerprints and DNA profile, as well as storage of biological material, afterwards
criminal cases that were decided with acquittal and suspension, respectively, and the specific
the balance that was made thus has limited significance for the norwegian rules on
registration in the DNA identity register. In the Attorney General's assessment does not imply
statements in this Decision that it is contrary to Article 8 of the ECHR to register in the DNA
registered persons who have been sentenced to imprisonment, regardless of the nature of the offense. "
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HR-2019-1226-A, (case no. 19-014740SIV-HRET)
(6)
The Attorney General found that there were no special reasons which suggested that registration should not
happen. He specifically mentioned that the long time that had passed since the conviction could not
considered as such a special reason.
(7)
Biological material was obtained from A on 12 September 2016. He then appeared before the police
and had a smear taken in the oral cavity. Kripos registered the DNA profile on September 26, 2016.
(8)
At the summons on 21 September 2016, A sued the state, claiming that
The Attorney General's decision of 21 June 2016 was invalid. He argued that the decision was a
disproportionate encroachment on his private life, cf. ECHR article 8 no. 2. Oslo District Court concluded that
the intervention was not disproportionate and acquitted the state by judgment of 7 June 2017. A was sentenced to
cover the state's legal costs.
(9)
A appealed to the Borgarting Court of Appeal over the district court's application of the law. In addition to that he
maintained the allegation of disproportion, he also argued that
The DNA registration did not have a sufficient legal basis. After written consideration declined
Court of Appeal 14 November 2018 judgment with the following conclusion:
«1.
The appeal is rejected as far as the district court's judgment is concerned, the verdict in point 1.
2.
Each of the parties shall bear its own costs before the district court and the court of appeal. "
(10)
The Court of Appeal ruled that the DNA registration had sufficient legal authority. When it
applies to the proportionality of the intervention, the Court of Appeal expressed doubts, but came to the same
result as the district court.
(11)
A has appealed to the Supreme Court against the Court of Appeal's application of the law. He has asserted
that the DNA registration does not have sufficient legal authority, and that the intervention is not
proportionate to Article 8 (2) of the ECHR.
(12)
The Supreme Court Appeals Committee made a decision on 21 February 2019 with the following conclusion:
"The appeal is being considered in the Supreme Court with regard to the question of
the registration of A's DNA profile in the DNA register (identity register) is
disproportionate, cf. Article 8 of the ECHR. Otherwise, the appeal is not permitted to be advanced. "
(13)
The appellant - A - has briefly stated :
(14)
DNA registration is disproportionate and involves a violation after
ECHR Article 8 no. 2. The Attorney General's decision of 21 June 2016 must be known on that basis
void.
(15)
This is an encroachment on a fundamental right, and the states' margin of discretion is in such
cases limited. The regulations on DNA registration in reality allow for unlimited time
storage of DNA, without the possibility of deletion and individual assessments of convicts
personal relationships. As the Attorney General is the appellate body, the right of appeal is not real.
The access to justice is also in many cases illusory in that civil lawsuit
- with the risk of own and the other party's legal costs - is the only alternative.
Registration can take place regardless of whether the conviction concerns an offense that results in an increase
probability of recidivism to "DNA-relevant" crime. With this is the access to
registration "blanket and indiscriminate" and thus contrary to Article 8 (2) of the ECHR.
Page 4
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HR-2019-1226-A, (case no. 19-014740SIV-HRET)
(16)
Specifically, the intervention does not serve any sensible purpose and is not effective and necessary
instrument for the state. Furthermore, the Attorney General has not made an individual assessment of
the need for registration. An overall assessment of the opposing considerations indicates that
the registration is a disproportionate interference.
(17)
A has filed such a claim:
«The Attorney General's decision of 21/6/16 is invalid.
A is ordered to pay the costs. "
(18)
The respondent - the state at the Ministry of Justice and Emergency Preparedness - has in short
current:
(19)
The registration of A's DNA profile is not disproportionate and does not violate his rights
pursuant to Article 8 of the ECHR. There are thus no grounds for invalidity on the part of the Attorney General
decision.
(20)
The EMD's practice shows that DNA registration is in principle a proportionate intervention
to convicts. However, there are requirements for the delimitation of
the registration access - the intervention threshold - and that the privacy of the registered person must
effectively protected. The regulations in Norway meet these requirements.
(21)
In the specific proportionality assessment, it must be emphasized that
DNA registration is a modest procedure. The delimitation of the registration access is
thoroughly assessed by the legislature and meets the requirement for «appropriate safeguards against blanket and
indiscriminate taking and retention of DNA-samples ». A's privacy is also protected on
an effective way, among other things in that he can request deletion, appeal the decision and
bring it before the courts for review. It is of central importance that he is convicted
for a serious offense, and it is not essential that DNA is not relevant to detect
tax evasion.
(22)
The state at the Ministry of Justice and Emergency Preparedness has filed the following claim:
«1.
The appeal is rejected.
2.
The State v / the Ministry of Justice and Emergency Preparedness is awarded the costs of the case
for the District Court, the Court of Appeal and the Supreme Court. "
(23)
My view on the matter
(24)
The question is, as mentioned, whether registration of A's DNA profile is a disproportionate intervention
which violates his rights under Article 8 of the ECHR. The Supreme Court has full jurisdiction,
cf. HR-2018-2133-A section 46.
(25)
Before I go into the legal issues that the case raises, I find reason to give one
a more detailed description of the DNA profiles to which the case relates.
(26)
More about the DNA profiles used in criminal justice
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HR-2019-1226-A, (case no. 19-014740SIV-HRET)
(27)
Section 45-2 no. 1 of the Police Register Regulations defines a DNA profile in the following way:
«DNA profile: the result of an analysis of biological material to determine a person
identity. The DNA profile is expressed by a number combination. Profiles registered in
The DNA register is referred to as identity profiles, investigation profiles and trace profiles. "
(28)
In NOU 2005: 19 Act on DNA registers for use in criminal justice , the so-called
The DNA sample in Chapter 3 for what DNA is and how the profiles are analyzed and used. I
generally refers to the manufacture there. The Ministry passes on in Ot.prp. No. 19 (2006−2007)
section 3.1.1 on page 10 a brief description of the DNA profiles used in Norwegian
criminal justice. Here it is stated, among other things, that the chosen analysis method «is not suitable for
other than identification », and that information about, for example, character traits and
health conditions are not revealed in the analysis.
(29)
The National Institute of Public Health has in an article called «Questions and answers about DNA analyzes in
criminal cases »stated that a DNA profile is a series of numbers based on genetic analysis of biological
material, such as skin cells and blood. The department further states that the profiles consist of a set of
markers that are unique to that person. It is stated that we in Norway - as in those
most other countries in Europe - operate with 17 different markers. These markers give
no information about the person other than gender. In the article compares
The National Institute of Public Health combines the numbers in a DNA profile with “an expanded and more secure
social security number ». Regarding the application, the department states:
«By comparing a DNA profile from a biological trace with a DNA profile from one
reference sample, it is possible to say whether the two profiles have the same origin. This is
the principle that underlies all identification work in connection with
criminal cases, paternity cases and disasters. "
(30)
In the article, the National Institute of Public Health also emphasizes that these DNA profiles do not say anything about
hereditary traits and health risks. I perceive the presentation in the article as undisputed
in the case and builds on it in the sequel. Against this background, I note that
The DNA profile used in Norwegian criminal justice does not provide information about either
skin color, eye color, height and physique. From what is stated, I also understand that
it can clarify kinship with a significant degree of certainty. The key, however, is that
the profile can establish a person's identity.
(31)
I conclude by mentioning under this point that it is stated in the counter before the Supreme Court that
The DNA profiles are in a closed database where only 13 employees in Kripos have access. Name
and other personal information is in another database. The link between the databases
takes place using a unique number linked to the DNA profile.
(32)
Overview of the Norwegian regulations and legal history
(33)
As a background for the further discussion, I find it appropriate to give an overview of
the regulations for DNA registration and the history behind it. I will come back in more detail
to the most central provisions in the specific proportionality discussion.
(34)
By Act no. 79 of 22 December 1995, provisions were made on access to
DNA registration in the Criminal Procedure Act § 160 a. According to the first paragraph, a
central DNA register with DNA profiles «of persons convicted of violation of
Chapter 14, 19, 22 or 25 of the Penal Code, or for attempts at such a crime ».
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HR-2019-1226-A, (case no. 19-014740SIV-HRET)
The registration access was thus limited to persons who had been convicted
provisions in the chapters on general crimes, sexual offenses, crimes against
life, body and health as well as extortion and robbery.
(35)
In 2004, a committee was appointed to assess changes in these rules - the DNA committee.
The mandate was, among other things, to assess whether it should be possible to register a DNA profile in
several types of cases, and whether the charge should be a sufficient condition for registration. The selection
submitted in November 2005 the report NOU 2005: 19, which I have already referred to. In draft
a new law on DNA register for use in criminal justice § 3, it was planned that it should
be allowed to register the DNA profile of persons who «have been charged with a criminal offense
reaction or has been granted a failure to prosecute pursuant to the Criminal Procedure Act § 69 for an act which
according to the law may result in a custodial sentence », see page 73 in the report.
(36)
The Ministry of Justice and the Police went in Ot.prp. No. 19 (2006−2007) to expand access
to DNA registration in line with the DNA Committee's proposal, but so that this should continue
is regulated in the Criminal Procedure Act § 160 a. In the proposition, the Ministry considered, among other things
whether the charge should be sufficient for registration and what criminal offenses
should qualify for this. The relationship to human rights was discussed in section 3.1.4. I
comes back to the assessments that the ministry made here, but finds already now
reason to quote the following from pages 19 to 20 of the proposition:
"Against this background, the ministry sees a need for more precise and targeted regulation
of what should and should not qualify for registration - in line with the current legal situation
where it is both a 'must-rule' and a 'can-rule', cf. the prosecution instruction § 11a – 2.
The Ministry therefore believes that the most appropriate thing would be to open up to an extensive
registration in the law, but that access is made optional. With such an approach it is given
room for the registration access to be restricted and made more concise in regulations.
The approach also takes into account that the expansion can take place gradually. In light of
the statements of the consultative bodies, it may, for example, be relevant to cut off the smaller ones
serious violations, such as minor violations of the Road Traffic Act and
violations of police statutes. For other violations, the registration access may
made optional. However, a not insignificant extension is planned in the regulations
compared with current rules, so that the register has sufficient effect. The closer
the delimitation will stand for the work with the prosecution instruction. "
(37)
The Ministry proposed that section 160 a of the Criminal Procedure Act should provide access to DNA registration
of all those who were "punished for an act which by law may result in a custodial sentence".
The proposal was adopted without changes on this point, see Inst. O. No. 23 (2007−2008) page
10.
(38)
When A was convicted in 2012, access to DNA registration was still regulated in
Section 160 a of the Criminal Procedure Act. The first paragraph had this wording:
"Whoever is punished for an act that according to the law may result in a custodial sentence, can
registered in the identity register. Registration in the identity register can only take place when
the decision is final or the case is finally settled. Before this time can try
obtained pursuant to section 158 is registered in the investigation register. Action as it is
issued a simplified fine for, does not provide a basis for registration. "
(39)
The provision thus set out the right to register DNA on certain conditions, but no obligation.
Furthermore, registration could only take place by conviction for offenses of a certain seriousness.
Anyone who was only a suspect, accused or accused could not be registered in the identity register.
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HR-2019-1226-A, (case no. 19-014740SIV-HRET)
(40)
Section 160 a, sixth paragraph, stated that the information in the DNA register could only be used in
criminal justice, but so that regulations could be issued on use for research purposes. Seventh
paragraph provided a general authority to issue further provisions, including on storage,
deletion and right of appeal.
(41)
Through the prosecution instructions, Chapter 11 a, the Ministry issued further provisions on
DNA registration. Access to registration was regulated in §11a-1. The third of the provision
paragraph provided a framework for the registration access that coincided with the conditions in
The Criminal Procedure Act § 160 a. The competence to provide supplementary guidelines was in
§ 11a-12 delegated to the Attorney General.
(42)
Pursuant to this legal basis, the Attorney General issued new guidelines in circulars
August 15, 2008 - RA-2007-569. Chapter III of the circular provides for
registration in the identity register, and in chapter no. 2 it is initially stated in the first paragraph:
"The guidelines apply to persons who have been legally convicted as of 1 September
2008. For judgments handed down before this time, the previous rules and guidelines apply.
Flg. persons must from the said time be registered in the identity register, unless it
there are very special circumstances:
1.
Everyone who, as of 1 September 2008, has been sentenced by a Norwegian court has a final judgment
unconditional imprisonment or detention for more than 60 days. Registration must take place
regardless of which offense the sentence applies to. … »
(43)
In the second paragraph, the Attorney General states that registration "only in very exceptional cases" should be omitted
«If a person falls within the guidelines», and that the reservation «completely peculiar
circumstances "are intended to capture" atypical situations that will occur infrequently and
where registration is clearly not expedient ». This is justified by a desire to avoid
"A difficult assessment of the specific need for registration of the individual offender".
(44)
The Police Register Act was passed in 2010, but § 12 - which is central in this case - was first
entered into force in September 2013. The Criminal Procedure Act § 160 a first to fourth paragraphs was continued
without amendments to the Police Register Act § 12 second paragraph, see the special remarks to
the provision in Ot.prp. no. 108 (2008−2009) page 299. Also sixth paragraph that
the information can only be used in criminal justice, was retained. The Ministry is discussing in
the proposition point 4.3.1 the relationship to the ECHR article 8, something I will return to.
(45)
Section 4 of the Police Register Act states that information may be «processed for the purpose for which it is intended
obtained for or for other police purposes ", unless otherwise provided by law or in
pursuant to law. Paragraph 5 states that information can only be processed when it is
«Necessary for purposes as mentioned in § 4». In our context, "information" means
personal information about natural persons, cf. § 2 no. 1 and the special remarks to
the provision on page 291 of the proposition.
(46)
Pursuant to various provisions in the Police Register Act, including section 12, was
the Police Register Regulations adopted in September 2013. Chapter 45 provides for
The DNA register. Pursuant to section 45-1, a DNA register consisting of a
identity register, an investigation register and a trace register. The stated purpose is to
«Help to solve crime by facilitating the comparison of DNA profiles
for identification purposes in criminal justice ». Section 45-6 contains further provisions on
what information can be registered in the various registers. Here it appears that in
the identity register, DNA profiles can be registered from persons as mentioned in
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HR-2019-1226-A, (case no. 19-014740SIV-HRET)
the Police Register Act § 12 second paragraph. There are otherwise detailed rules on, among other things
processing of the information, access and disclosure, access and right of appeal. I find
reason to cite the provision on deletion of information in § 45-17 first paragraph:
«Information in the identity register shall be deleted if the registered person is legally acquitted
after reopening. Otherwise, the identity profile must be deleted no later than 5 years after the person in question
is dead or earlier if continued registration obviously will no longer be
appropriate. … »
(47)
I also mention § 45-18, where it appears that biological material that has been
analytical basis for DNA profiles, shall be destroyed «as soon as registration of the profile has
took place or the purpose of the investigation has been achieved ». This also follows from
Criminal Procedure Act § 158 second paragraph. The right of appeal is regulated in § 45-20.
(48)
The Attorney General issued new guidelines for the registration of DNA in a circular on 17 October
2013 - RA-2012-2261. The introduction to the circular states that the Attorney General has
decided to lower the threshold for registration in the identity register "considerably". It appears
further that the circular is the result of a balance of cross-cutting considerations:
«The guidelines below are determined after a balance of various considerations, where desired
to combat and solve criminal offenses, privacy concerns and capacity stands
central. DNA is undoubtedly a useful contribution in combating and clarifying
breach of integrity and serious crime. As of today, the Norwegian authorities do not have
research-based and accurate data on the number of repeat offenders
different nature and about details regarding the identity register's direct significance for clarification
of cases, unfortunately. Based on experience and feedback from the police, it is still
there is no doubt that a number of serious offenses are committed by persons who have already been punished
for actions of varying severity. Also preliminary findings in the evaluation of
The DNA reform initiated by the Norwegian Police Directorate shows that DNA is a useful tool
aid in cases where traces are secured. "
(49)
Point II, first paragraph, No. 1, stipulates that the following persons must be registered in
the identity register:
«A)
Everyone who in this country has been sentenced to detention, unconditional imprisonment (including sentencing),
juvenile punishment or community punishment. Registration must take place regardless of which
offense the judgment applies.
The same applies to anyone who has been sentenced to transfer to compulsory psychiatry
health care or compulsory care .
b)
Anyone who has been sentenced to conditional imprisonment for a violation or attempted violation
of the Penal Code 2005 §§ 231-232, provisions in Chapter 26, §§ 282-283,
§§ 271-275, § 322 cf. § 321 or § 328 cf. § 327. The same applies correspondingly
provisions of the Penal Code 1902 (ie § 162, Chapter 19, § 219, §§ 228-233,
§ 258 (cf. § 257 or § 268 (§ 267).
c)
Anyone who has been fined or has adopted a fine issued by Norwegian
prosecuting authority for violation or attempted violation of provisions in
Penal Code 2005 Chapter 26, § 322 cf. § 321 or § 328 cf. § 327. The same
applies corresponding provisions in the Penal Code 1902 (ie Chapter 19,
§ 258 (cf. § 257 or § 268 (cf. § 267). "
(50)
This is a provision that in principle does not leave room for discretion. Of the third
paragraph states, however, that registration may be omitted 'if there are very special ones
circumstances in the individual case that make registration clearly not expedient ».
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(51)
The circular stipulates that this applies to persons whose case has been finally decided
as of 1 October 2013, and that the previous guidelines apply to judgments handed down before
this time. This basically means that the validity of the decision in A's case must
assessed according to the circular from 2008. At the same time, it is agreed that the provisions of the new
the circular must be applied to the extent that these are more favorable to him. The same must
apply to the choice between the rules in the prosecution instructions and the police register regulations. I
relates to the Police Register Regulations, unless there is a reason for the above
something else. Because the Police Register Act § 12 coincides with the Criminal Procedure Act
§ 160 a as it read in 2013, I refer in the continuation only to the former.
(52)
Article 8 of the ECHR and the proportionality assessment when registering DNA etc.
(53)
Article 8 of the ECHR has this wording in Norwegian translation:
«1.
Everyone has the right to respect for his private and family life, his home and his own
correspondence.
2.
There shall be no interference by public authority in the exercise of this
right except when this is in accordance with the law and is necessary in a
democratic society for the sake of national security, public safety
or the country's economic welfare, to prevent disorder or crime, for
to protect health or morals, or to protect the rights and freedoms of others. "
(54)
Registering a person's DNA profile is an invasion of privacy. According to Article 8 of the ECHR
such an intervention only takes place if the decision has legal authority, it is justified by a legitimate
purpose and is proportionate, cf. for example HR-2017-1130-A section 42. In this case
it is undisputed that the registration serves a legitimate purpose in that it can contribute to
fight crime. By the judgment of the Court of Appeal, it is further legally decided that
the legal basis satisfies the quality requirements that have been set. The validity of the Attorney General
decisions therefore depend solely on whether the registration of A's DNA profile is a
disproportionate interference with him.
(55)
The requirement of proportionality is expressed through the wording «necessary in a
democratic society »-« necessary in a democratic society ». In HR-2015-206-A section
60, the first voter states that the proportionality assessment «must have the balance in mind
between the protected individual interests on the one hand and the legitimate ones
the societal needs that justify the measure on the other ». Of particular interest in this
the point is that the condition of necessity is, among other things, linked to the consideration of «prevention
disorder or crime ».
(56)
I also take as my starting point the description of the proportionality requirement given in
EMD's Grand Chamber Decision 4 December 2008 S. and Marper v. UK section
101 et seq. The case concerned precisely the proportionality of registration of DNA profiles from two
complainants. Complainant S. was an eleven-year-old boy who was arrested and charged with robbery. He was
later acquitted. The other complainant - Marper - was charged with ill-treatment of his partner,
but the case was dropped after they were reconciled. In section 101, the EMD begins the presentation of
the proportionality requirement as follows:
«An interference will be considered 'necessary in a democratic society' for a legitimate
aim if it answers a 'pressing social need' and, in particular, if it is proportionate to the
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legitimate aim pursued and if the reasons adduced by the national authorities to justify it
are 'relevant and sufficient'. »
(57)
The need for the procedure must then be included in the balance, and it must be investigated whether
legislator's assessments are relevant and adequate. The EMD further emphasizes in section 103 that
the national rules must provide guarantees - «appropriate safeguards» - against the use of
personal data incompatible with Article 8. Legislation must ensure that storage
of such information is «relevant and not excessive in relation to the purposes for which
they are stored ». In the same place, the EMD also points out that the states' regulations must be effective
protection against misuse of the information.
(58)
On the other hand, in section 104, the EMD states that the consideration of crime prevention
can have a decisive weight in the balance. The discussion of the general starting points
ends as follows in the section:
«The interests of the data subjects and the community as a whole in protecting the
personal data, including fingerprint and DNA information, may be outweighed by the
legitimate interest in the prevention of crime (see Article 9 of the Data Protection
Convention). However, the intrinsically private character of this information calls for the
Court to exercise careful scrutiny of any State measure authorizing its retention and use
by the authorities without the consent of the person concerned (see, mutatis mutandis, Z v.
Finland , cited above, § 96). »
(59)
The states' margin of discretion seems to be limited in this area. In the S. and Marper judgment
section 102, the EMD emphasizes that the margin of discretion «will tend to be narrower where the right
at stake is crucial to the individual's effective enjoyment of intimate or key rights ». I
perceives it so that our case precisely concerns such fundamental rights as EMD here
reviews. Similarly, in its judgment of 22 June 2017, the EMD states Aycaguer v. France ,
which also concerned the registration of DNA profile, that the margin of discretion is usually limited when
a particularly important aspect of the person or identity of a person is at stake, see section
37. I also refer on this point to the judgment of 18 September 2014 Brunet v. France
section 34. It concerned personal data other than DNA profiles, but still has
interest in this context.
(60)
Based on these general starting points, I turn to look more specifically at EMDs
view on the proportionality of registration of DNA profiles. I first mention that EMD
Recognizes the important role that DNA plays in the fight against crime . In S. and Marper-
the judgment states the EMD in paragraph 105 that it finds it «beyond dispute that the fight against
crime, and in particular against organized crime and terrorism, which is one of the
challenges faced by today's European societies, depends to a great extent on the use of
modern scientific techniques of investigation and identification ». The court follows up
this in section 106 by acknowledging the importance of DNA profiles in the work of uncovering
crime.
(61)
Corresponding statements have been made in other decisions. I will confine myself to mentioning Aycaguer-
the judgment, where this is commented on in section 34. In accordance with the EMD's excerpt in English
states the court here that it «fully realizes that in order to protect their population as
required, the national authorities can legitimately set up databases as an effective means of
helping to punish and prevent certain offenses,… ».
(62)
However, the EMD stipulates that the registration access must be limited . I find
it again natural to take as a starting point the Grand Chamber judgment S. and Marper. In section
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110 The EMD points out that England, Wales and Northern Ireland seemed to be the only ones
the jurisdictions that allowed the indefinite storage of fingerprints and DNA material
til «any person of any age suspected of any recordable offense». The court follows up
this in paragraph 119, where it states that it is «struck by the blanket and indiscriminate
nature of the power of retention in England and Wales ».
(63)
The term "blanket and indiscriminate" is also referred to in other decisions from the EMD. IN
the rejection decision 4 June 2013 Peruzzo and Martens v Germany section 43 takes EMD
starting point in this criterion when it holds the specific case up against S. and
Marper judgments. I also refer to the Brunet judgment section 36. This must be understood so that
national regulations must set barriers to registration access based on precise
criteria.
(64)
The EMD's practice also emphasizes that the national rules must offer sufficient
legal security and privacy guarantees . The court formulates the general
the principle as follows in Peruzzo and the Martens Decision, paragraph 42:
«The Court has specified in this connection that domestic law must afford appropriate
safeguards to prevent any such use of personal data as may be inconsistent with the
guarantees of this Article. »
(65)
The EMD's decisions provide guidance on aspects and assessment topics that are relevant in
the proportionality assessment. Firstly, the Court seems to attach great importance to this
is the registration of the DNA profile of a person who has been convicted . In S. and
As mentioned, the Marper judgment did not convict the complainants of a crime. EMD highlights in paragraph
122 that DNA registration in such cases has a side to the presumption of innocence and implies
a risk of stigma:
«Of particular concern in the present context is the risk of stigmatisation, stemming from
the fact that persons in the position of the applicants, who have not been convicted of any
offense and are entitled to the presumption of innocence, are treated in the same way as
convicted persons. In this respect, the Court must bear in mind that the right of every
person under the Convention to be presumed innocent includes the general rule that no
suspicion regarding an accused's innocence may be voiced after his acquittal… »
(66)
In Peruzzo and Martens' decision, section 43 et seq., The EMD argues why the result
must be different from that in the S. and Marper judgment. Here it is first emphasized that both Peruzzo and
Martens was convicted, see section 44. At this point, I also refer to the judgment of 18 April
2013 MK v France section 42 and Brunet judgment section 37.
(67)
In its decisions, the EMD further emphasizes the seriousness of the offense . In S. and
The Marper judgment points out to the court that the regulations in England and Wales allowed for
registration of DNA «irrespective of the nature or gravity of the offense with which the
individual was originally suspected ", see section 119. Similarly, the court states in
the rejection decision of 7 December 2006 van der Velden v. the Netherlands in paragraph 2 that it
it is not unreasonable to require DNA testing of persons convicted of offenses «of a
certain severity ». And in the rejection decision of January 20, 2009 W. against the Netherlands is used
the term "certain gravity" during the discussion of Article 8.
(68)
The appellant has emphasized that A has not been convicted of an offense to which DNA can contribute
clarification. This raises the question of whether the nature of the offense is significant in
the proportionality assessment.
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(69)
As I just mentioned, in the S. and Marper judgment paragraph 119, the EMD emphasized that
national regulations opened for registration regardless of «the nature or gravity of the
offense ». A similar wording is used in Aycaguer judgment paragraph 43, while I do not
finds references to the nature of the offense in the other decisions to which the parties have referred. I
is not aware of any decision that requires the registration of a DNA profile
should only be able to take place after conviction for offenses where DNA can contribute to clarification -
"DNA-relevant" offenses. On the other hand, the EMD has not had any appeal either
to make such a claim. Here I refer to all the decisions about DNA registration
seems to apply to crime where DNA can contribute to clarification, such as violence, robbery,
drug offenses and sexual offenses.
(70)
As I interpret the EMD's practice, the nature of the offense is a factor that may be
relevant in the overall proportionality assessment. At the same time, there are no clues
for the "DNA relevance" of the offense alone to be given decisive importance.
(71)
Deletion access and deletion routines have a central place in many of the EMD's decisions. IN
the Grand Chamber judgment S. and Marper emphasized to the EMD that the national rules allowed for
"Indefinite retention" of, among other things, DNA profiles, see section 110. I also refer to
judgment of 17 December 2009 Gardel v. France . The case concerned the registration of
personal information in what is called "The Sex Offenders Register". The French
the regulations stipulated that deletion should take place no later than after 30 years for the most serious crimes,
at the same time as it was possible to appeal the registration decision, see sections 17 and 68.
The complainant was sentenced to 15 years in prison for sexual intercourse with a minor. EMD came into being
that the complainant's rights under Article 8 of the ECHR had not been violated and appear in paragraph 69 to have added
significant emphasis on deletion routines. Here it says, among other things:
«The Court considers that this judicial procedure for the removal of data provides for
independent review of the justification for retention of the information according to
defined criteria (see S. and Marper, cited above, § 119) and affords adequate and
effective safeguards of the right to respect for private life,… »
(72)
At this point, I also refer to the Brunet judgment, section 41.
(73)
Practice from the EMD shows that the storage of the profiles, access to the data and
confidentiality are elements that must be included in the proportionality assessment.
The Court emphasized this in the judgment in S. and Marper, see paragraph 103. In the same way, it drew
EMD this factor into the assessment in the rejection decision W. against the Netherlands. IN
the decision on page 7, the courts emphasize that the DNA material was stored «anonymously
and encoded ».
(74)
The parties seem to agree that complain opportunities and access to judicial review is also
elements that are included in the proportionality assessment. I agree with that. This is behind
my view is implicit in the EMD's discussions of deletion routines in several cases, see among other things
cited paragraph 69 of the Gardel judgment.
(75)
In general, there is no doubt that the intensity of the intervention has a central place in the trade-offs.
In the van der Velden decision, the EMD stated on page 7 that “the interference at issue was
relatively slight ». The Brunet decision section 39 can be understood differently, but it applied
other types of personal information than DNA and are not completely unambiguous. I find it for mine
There is little doubt that the storage of personal data is taken more seriously today
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than just a few years ago. Another issue is that the way the samples are taken cannot be characterized
as stressful. I'll come back to this.
(76)
Finally, under this point, I mention that the appellant has compared the Norwegian rules
with the regulations in other European countries. I see it as the legal situation in other states
is not without interest in a case like this. But the importance of state practice lies first and foremost
primarily in that the EMD takes this into account in its decisions, so that legal opinions that have
broad support among the states that have joined the ECHR affects the legal situation. On this
background, I do not see a need to provide a presentation of the regulations in other countries.
(77)
The legislator's considerations
(78)
As I have mentioned, the legislator's assessments and considerations are central
the proportionality assessment, see for example section 101 of the S. and Marper judgment. On
Against this background, I find it appropriate to give an overall presentation of them
the preparatory statements addressing the relationship to Article 8 of the ECHR.
(79)
The DNA Committee assessed in NOU 2005: 19 point 4.5 restrictions under international law
the right of registration, including the relationship to Article 8 of the ECHR
the committee that the registration of a person's DNA profile was an invasion of privacy after
the provision. The selection found - based on the limitations and barriers that
then - that such registration was proportionate, see page 37.
(80)
As mentioned, the Ministry of Justice and the Police submitted a proposal to extend access to
DNA registration in Ot.prp. No. 19 (2006−2007). In section 3.1.4, the Ministry assesses
the relationship to Article 8 of the ECHR. It is stated at the outset that some consultative bodies had
called for a more thorough assessment of this issue, in particular of proportionality.
The Ministry then states that the registration is an interference within the meaning of the provision.
Then it is called:
"When it comes to obtaining DNA, the procedure must be to iron a cotton swab on the inside
oral cavity - could be characterized as modest for the person concerned. The very
DNA registration also constitutes a minor intervention: First, the register is pure
identity register, where no information has been registered that can reveal characteristics
beyond gender. The registration therefore has limited privacy implications,
which is reinforced by the fact that the DNA samples (the actual DNA material) after the ministry
proposals should not be kept after the DNA profile (number code) has been registered. True
the DNA profile is registered together with information about the basis for the registration
(a final decision stating that the person has committed a criminal act),
but this personal information is stored securely and is subject to strict control.
Only the registrar (the manager of Kripos) or the person he authorizes has access to
the register, and the register shall at all times be protected from access and kept
inaccessible to unauthorized persons, cf. the Prosecution Instructions § 11a – 6 second paragraph. In addition,
the person who has been registered is notified immediately, and anyone can request information about it
the register contains information about him / her and what this information is about.
The right of access and adversarial proceedings and extradition restrictions have been central when
The EMD has assessed whether public registers with personal data are compatible with the ECHR
Article 8. »
(81)
The Ministry then maintains the intervention against the purpose of increasing the clearance rate. About
this is what the ministry states:
"On the other hand, the use of DNA is considered necessary and very suitable in terms of
light of what is desired to be achieved - to increase the clearance rate in criminal cases. The DNA profile
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is an important (and sometimes crucial) piece of evidence in criminal cases where it exists
biological traces, as it provides a reliable identification of the perpetrator. That is why
good reason to believe that the number of confessions is increasing where searches against the registers yield DNA hits,
while innocents can be excluded from a case. In this way, the DNA evidence in a
to some extent counteract incorrect charges and convictions. A not insignificantly extended access
to registration with opportunities to search the identity and trace register, will lead to
that the duration and scope of the investigation be reduced and police resources released. "
(82)
By extension, the Ministry also points out that the necessity assessment must be taken into account
for that «the crime picture has changed in a negative direction in recent times, and that this
the development may intensify in the years to come ». Also others
development features are highlighted in support of extended access to DNA profile registration,
such as criminal groups becoming increasingly better organized, cooperation between criminals
networking, internationalization, greater brutality and professionalization as well as specialization of
criminals. The Ministry states that there is «a clear need for effective instruments such as
combats this development », and that« an extended DNA register will lead to more cases
clarified ». The discussion ends as follows:
"Against this background, the modest encroachment on privacy is -
in the Ministry's view - reasonably in relation to the goals that public authorities want
achieve by the procedure. The intervention is therefore considered 'necessary in a democratic society'.
The Ministry will also note that the proportionality assessment will also be made when
the detailed threshold for registration shall be laid down in regulations. "
(83)
I also refer to the discussion of which criminal offenses should qualify for
registration in section 3.4.4.2 on pages 19−20, which I have also touched on earlier. Here highlights
the Ministry that it is “crucial to find a good balance between the consideration of an effective
exploiting the potential of DNA registration for better and faster resolution
of criminal offenses, a sensible use of resources, and consideration for the individual
privacy ». Furthermore, it is pointed out that the rules should be easy to apply, and not too extensive
degree invite to discretionary assessments.
(84)
The relationship to Article 8 of the ECHR was also considered when the Police Register Act was introduced. IN
Ot.prp. No. 108 (2008−2009), the discussion of proportionality has been expanded and nuanced
compared to the one I just referred to. In section 4.3.1 on page 39 states
Ministry:
«The police's registration and other information processing contribute significantly to this
the fight against crime, not least in connection with police prevention
business. The proportionality requirement must nevertheless be an important clue
the formulation of the rules that form the basis for police information processing.
It must be a basic principle that the powers of attorney are not extended beyond what is
necessary in relation to the purpose the intervention is to serve. Since
Fighting crime is a fairly broad purpose, there may be a need to undertake one
proportionality assessment even if the treatment itself is necessary to
fight crime. For example, it may be appropriate to adapt the police
authorizations to the severity of the crime, so that the authorizations are further in the event of seriousness
crime. Although all forms of crime are basically a threat to it
democratic society, society is not served by too extensive monitoring from
police side. "
(85)
I see it as the Ministry in these preparatory statements has made thorough
assessments of the proportionality of DNA registration. Relevant considerations have been drawn
forward and weighed. The Ministry has intended that the registration must not be more
comprehensive than necessary to fulfill the purpose of combating crime, and in it
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In this connection, it is suggested that the severity of the crime must be taken into account. I can
on the other hand, do not find evidence that the registration should be reserved for offenses by one
certain character, if the crime first has the required severity.
(86)
In my view, these assessments must have weight in the assessment of the intervention vis-à-vis A. På
against this background, I turn to the more specific proportionality assessment.
(87)
More about the proportionality assessment
(88)
The decisive factor for the validity of the decision on registration is the proportionality of it
concrete intervention against A, see S. and Marper judgment section 106. At the same time, I have shown
that the counters and guarantees in the national regulations must be given a central place in
the assessments. I will therefore also abide by the Norwegian rules - which I have already given one
overview of - up to the requirements derived from EMD's practice.
(89)
The starting point is that it is a matter of registering a DNA profile that shows it
the sex of the data subject, but which is otherwise «not suitable for anything other than identification»,
cf. Ot.prp. No. 19 (2006−2007) page 10. It does not say anything about hereditary traits,
health risk, appearance or physique. I remind you in this context that
the biological material shall be destroyed as soon as the registration of the profile has been made or
the purpose of the investigation has been achieved, see the Criminal Procedure Act § 158 second paragraph and
the Police Register Regulations § 45-18. In this lies a guarantee against later abuse and
dissemination of sensitive information. The biological material obtained from A is in
thread with this destroyed. The actual sampling cannot be considered intrusive - it has been taken
a swab from A's oral cavity with a swab or mouth fungus.
(90)
Furthermore, there seems to be a widely accepted view that registration of DNA profiles is
an effective means of increasing the clearance rate and fighting crime. This is
emphasized with weight in draft legislation, at the same time as it is assumed that the use of DNA in
the administration of justice only becomes more important as the crime picture changes. EMD has in a number
Decisions recognized the important role that DNA plays in the fight against crime. In S. and
Section 104 of the Marper judgment, the Court has held that the consideration of
crime prevention can have a decisive weight in the proportionality assessment,
see also sections 105 and 106.
(91)
At the counter, this point is illustrated through references to relapse statistics from
Statistics Norway - «Accused persons in base year, by main crime group by
recent recidivism and main crime group ». The statistics show a significant
recidivism risk in all major crime groups. Here it is of particular interest to
the risk of relapse is as high as 39.3 per cent also in the group that has been convicted
White collar crime. It is further worth noting that the convicts in this group in
to some extent falls back to other crime, including crime where DNA can
contribute to clarification, such as other crimes of profit, violence, sexual offenses and
drug offenses. Although the risk of relapse into such crime is relative
modest, the figures show that the fight against crime does not only affect cases
where the conviction concerns what in the case is called "DNA-relevant" crime.
(92)
The review of the EMD's practice in this area has shown that the national regulations
must set precise limits on registration access and offer legal certainty and
privacy guarantees. At this point, I first point out that the Police Register Act § 12 second
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paragraph no. 1 only allows for the registration of DNA profiles of persons who "have been sentenced".
In other words, suspicion or accusation is not sufficient. A is sentenced to punishment by
the district court's final judgment. The case is thus in a different position than what was the case
in the EMD's judgments in, for example, the S. and Marper case and the Brunet case.
(93)
The Norwegian rules further stipulate that punishment must be imposed for a crime by one
some severity. The requirement under the Police Register Act § 12 second paragraph no. 1 is that the person in question
must be punished "for an act which according to the law may result in a custodial sentence".
The registration of A's DNA profile followed the guidelines in the Attorney General's circular from
2008, where the condition as mentioned was a sentence of unconditional imprisonment or detention for more than
60 days. A has been sentenced to prison for one year and six months, of which six months conditional.
(94)
I believe that our rules meet the requirements set out in the EMD's practice on this point.
And it must in my view be clear that A is convicted of a relationship that is serious enough to that
registration in principle can take place. To use the terminology in the EMD's decision in the van
In the Velden case, it is a matter of an offense "of a certain severity"
that the legislature has thoroughly assessed which criminal offenses should qualify for
registration, see Ot.prp. No 19 (2006-2007) point 3.4.4.2.
(95)
Admittedly, A has not been convicted of a type of offense where DNA normally contributes to clarification.
But as I have mentioned in my review of the EMD's practice, this can be heightened
not be more than one element in a broad assessment. Moreover, Statistical suggests
central agency's statistics that persons convicted of financial crime have a
higher risk of committing a new crime than previously unpunished. This increased risk
also applies to recidivism to "DNA-relevant" crime.
(96)
According to the Police Register Regulations § 45-17 first paragraph, DNA profiles must first be deleted automatically
five years after the death of the data subject. No provisions have been made for a reassessment
of the need at certain time intervals. I assume that the storage with this in practice is
indefinite, see for example the EMD's judgment in the MK case section 45. Basically is
this is a moment that clearly points in the direction of disproportion.
(97)
When this in my view still can not be decisive, it is due to the opportunity to
require deletion contained in § 45-17. According to the provision, deletion shall be made «if
continued registration will obviously no longer be appropriate ». Among other things on
Based on the state's procedure, I understand this so that it registered pursuant to
the provision may request deletion and receive an individual assessment of its case. The terms
to achieve deletion appears to be restrictive, but here lies still one
safety valve that must have weight in the overall assessment.
(98)
In this context, I would also like to remind you that decisions on registration can be appealed to
superior prosecuting authority pursuant to the Police Register Regulations § 45-20, an opportunity that A has
took advantage of. The Attorney General is the appellate authority. A has argued that the right of appeal
with this is not real, in that the Attorney General has also given the guidelines for
registration of DNA profiles. I do not agree with this. It is not unusual that
the appellate body also has a responsibility for the regulations against which the appeal is assessed. I
assumes that the right of appeal is practiced so that it is a real guarantee of legal certainty.
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(99)
Access to justice comes in as an additional guarantee, which this case is one
example of. In my view, it is not a conclusive objection that the data subject is
referred to civil action.
(100) When weighing, I also place considerable emphasis on the privacy guarantees that are embedded in
the regulations. I have already mentioned that a very limited number of people actually have
access to the DNA profiles. As mentioned, the Police Register Act § 12 sixth paragraph states that
the information in the DNA register should only be used in criminal justice. After
Section 45-11 of the Police Register Regulations, access to the DNA register's profile database must be restricted
to «a small number of persons who have been specifically authorized to search the database by
service needs ». Chapter 45 of the regulations provides further detailed provisions on, among other things
other processing responsibilities, processing of information, access and disclosure,
duty of information and access as well as blocking, deletion and storage.
(101) A has objected that the guarantees in the police register regulations have been eroded by the Supreme Court
decision of the Appeals Committee in HR-2018-2241-U. The case concerned the question of denying paternity.
The registered father had previously given a DNA sample in a criminal case, and the profile was
registered in the DNA register. The majority of the Appeals Committee came to the conclusion that section 24 of the Children's Act had to take precedence
Section 12, sixth paragraph, of the Police Register Act, so that information could be obtained from the police
DNA register in the paternity case, see section 26.
(102) I see it as the possibility that information from the DNA register can also be used in
paternity cases, probably entails an additional burden for the registered person. This can still
not be given decisive importance in the proportionality assessment. This is a narrow
exception to the rule that DNA profiles should only be used in criminal justice. In this
connection, I also point out that there will systematically be no contradiction between
the child's and the possible father's interest in having the paternity clarified, see section 25 in
the appeal committee decision.
(103) After an overall balancing of the intersecting considerations, I have come to the conclusion that
A's DNA profile is not a disproportionate intervention against him, cf. Article 8 (2) of the ECHR
In the assessment, I place considerable emphasis on the fact that he has been convicted of a serious offense, which
statistically increases the risk of recidivism, also to "DNA-relevant" crime.
The registration access is limited in the regulations in a sufficiently precise manner and is not
«Blanket and indiscriminate». In my view, it is also important that the Norwegian rules open up
for deletion after a specific assessment, at the same time as detailed provisions on among
other access, blocking, access and storage provide the necessary privacy guarantees.
The appeal will then be rejected.
(104) Legal costs, etc.
(105) The state has won the case and is in principle entitled to legal costs according to the main rule in
the Disputes Act § 20-2 first paragraph. However, the case has raised questions of principle and unresolved,
at the same time as I also emphasize the balance of power between the parties. Legal costs
is therefore not awarded to any instance, cf. the Disputes Act § 20-2 third paragraph.
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(106) I am voting in favor of this
JUDGMENT:
1.
The appeal is rejected.
2.
Legal costs are not awarded to any instance.
(107) Judge Arntzen: I have come to the appeal.
(108) I agree with the first voter's thorough review of the Norwegian regulations and of
Article 8 of the ECHR, but has a different view than him on the specific
the proportionality assessment.
(109) In a number of decisions, the EMD has summarized the proportionality assessment by
DNA records, most recently in the judgment of 22 June 2017 Aycaguer v France section 38:
«38.
Personal data protection plays a primordial role in the exercise of a person's
right to respect for his private life enshrined in Article 8 of the Convention.
Domestic law must afford appropriate safeguards to prevent any such use of
personal data as may be inconsistent with the guarantees of that Article. The
need for such safeguards is all the greater where the protection of personal data
undergoing automatic processing is concerned, not least when such data are
used for police purposes. The domestic law should, in particular, ensure that
such data are relevant and not excessive in relation to the purposes for which
they are stored, and preserved in a form which permits identification of the
data subjects for no longer than is required for the purpose for which those
data are stored. The domestic law should also comprise safeguards capable of
effectively protecting the personal data recorded against inappropriate and
wrongful use (see BB, cited above, § 61), while providing a practical means of
lodging a request for the deletion of the data stored (see BB, cited above,
§ 88 and Brunet ,… »
(110) The DNA registration must therefore at all times be relevant and necessary based on the purpose
with the registration. The use of the information for other purposes may also be important
for the proportionality assessment.
(111) In our case, the controversial DNA registration is due to a conviction for gross misconduct
tax evasion in the period 2001 to 2006. Although the conviction concerns serious offenses, it is
however, do not talk about offenses that DNA can help solve (DNA-relevant
offense). A main question in the case is what significance the type of offense should be given
in the proportionality assessment pursuant to Article 8 of the ECHR.
(112) I point out at the outset that the legislature has not considered the types of criminal offenses
which shall provide a basis for registration. In Ot.prp. No. 19 (2006–2007) section 3.4.4.2 states
the department at:
«Extensive registration [will] be very resource intensive and expensive. The registration must
have a clear utility function. Both the Attorney General and the Oslo Police District emphasize that it
extended registration provided by both the majority and (to a lesser extent) the minority,
will also lead to people who are hardly in any risk group for committing a new crime,
will be registered ».
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(113) This is the reason why the Ministry in the following paragraph points out the need «for one more
precise and targeted regulation of what should and should not qualify for registration ». The
it is assumed that the registration access is "narrowed and made more concise in regulations", but out
over a few examples, no further guidelines are given for this narrowing.
(114) The guidelines for which criminal offenses are to provide a basis for registration are set out
of the Attorney General's circular. It says that those who have been sentenced to unconditional imprisonment must
registered in the DNA register «regardless of which offense the judgment applies to».
(115) That the nature of the offense shall be irrelevant where the person in question has been sentenced to unconditional imprisonment,
miss in my view a further justification. When the DNA register was established in 1995,
assessed the so-called DNA sample whether the registration access should be based on type
offense, the penal framework of the law or the sentence imposed. A delimitation based on the last two
the alternatives were rejected as "not very useful" because such factors do not say anything about
the possibility of finding clues in connection with the offense that are suitable for the commission of
DNA analysis », cf. NOU 1993: 33 page 30. The Ministry, for its part, found« of principle
reasons that the crime categories should be stated directly in the text of the law », cf. No. 55
(1994–1995) page 10. This is the reason why the registration access in
the Criminal Procedure Act § 160 a until the amendment in 2008 was limited to apply to
conviction for certain categories of DNA-relevant crimes.
(116) It is unclear what usefulness it has to register all persons who have been sentenced unconditionally
prison. As stated in the introduction to the Attorney General's latest circular of October
2013, there was no “research-based and accurate data on how many people commit
repeated crime of various kinds and about details regarding the identity register's directly
importance for clarification of cases, unfortunately ». First-time voters have referred to a statistic from
Statistics Norway with recidivism figures from 2009. It seems to me that the recidivism percentage is
DNA-relevant crime is low for people who have previously been convicted of financial crimes
crime. In our case, the Court of Appeal assumes that «the probability that
registration of the person's DNA will help to solve later offenses is small »by
tax evasion. The state has not objected to this assessment.
(117) There is no EMD practice that directly addresses the significance of this
the nature of the criminal offense shall be attributed to the proportionality assessment. Except
general statements about the meaning of "the nature or gravity of the offense" as well
first-time voters point out, the 2017 Aycaguer ruling is probably the closest we get
the situation in our case. The question was about the complainant after being sentenced to two months
conditional imprisonment for beating police officers during a trade union rally could be imposed
to submit biological material for the purpose of registration in the DNA register. Section 43 states:
«Thus, the Court notes that no differentiation is currently provided for according to the
nature and / or seriousness of the offense committed, notwithstanding the significant
disparity in the situations potentially arising under Article 706-55 CPP. The applicant's
situation bears witness to this, with events occurring in a political / trade-union context,
concerning mere blows with an umbrella directed at gendarmes who have not even been
identified (…), contrasting with the seriousness of the acts liable to constitute the very
serious offenses set out in Article 706-55 CPP, such as sex offenses, terrorism, crimes
against humanity and trafficking in human beeings, to mention but a few. To that extent
the instant case is very different from those specifically relating to such serious offenses
as organized crime (see S. and Marper…) or sexual assault (see Gardel, BB and MB
…). »
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(118) As regards the possibility of deletion, the EMD states in paragraph 44 that
«Convicted persons should also be given a practical means of lodging a request for the
deletion of registered data (…). That remedy should be made available order in order to
ensure that the data storage period is proportionate to the nature of the offenses and the
aims of the restrictions ”(in Article 8 of the Convention).
(119) With reference to the duration of the storage period of 40 years and the lack of possibility for
deletion, the EMD found in paragraph 45 that the registration scheme did not maintain a fair balance
between the competing public and private interests at stake.
(120) I deduce from this that the nature of the offense is a factor in
the proportionality assessment, which harmonizes best with the necessity criterion in
Article 8 of the ECHR.
(121) A problem with the Norwegian registration scheme is that the nature of the offense is without
significance in cases such as As, both for the question of registration to take place and by
the assessment of a possible later request for deletion. Only if the registered becomes
unable to commit offenses - typically due to illness or old age - will
the registration after the information could be deleted. This implies the duty to delete
the information in the DNA register "no later than 5 years after the person's death",
cf. the Police Register Regulations § 45-17 first paragraph, will by far function «as a norm rather
than a maximum », to use the wording in, inter alia, Aycaguer judgment paragraph 42 .
The rejection of A's complaint - ten years after the criminal offenses were terminated - is in that sense
illustrative.
(122) In the proportionality assessment, I place further emphasis on the Supreme Court's Appeals Committee
ruling HR-2018-2241-U, which as of today means that the right of access under the Children's Act
§ 24 takes precedence over the requirement in the Police Register Act § 12 sixth paragraph that the information in
The DNA register can only be used in criminal justice.
(123) Ever since the DNA register was established in 1995, the law has prohibited its use
the information for purposes outside the criminal justice system. That the ban has been a key premise
for the legislature, appears from the preparatory work for the law. Already in NOU 1993: 31 page 29 assessed
The DNA sample the "theoretical possibility" for finding kinship via the DNA
registered. In NOU 2005: 19 page 47, it is briefly and well assumed that
The DNA register is a "pure identity register" which "should only be used in criminal justice".
To this end, the Ministry notes in Ot.prp. No. 19 (2006–2007) page 19 that no one sees
privacy concerns with the committee majority's proposal «as the register is intended
used today - namely exclusively as an identity register ».
(124) When the registration authority in 2010 was transferred from the Criminal Procedure Act § 160 a to
§ 12 of the Police Register Act, became secondary use of the information - that is, use for others
purpose - discussed in light of the principle of purposefulness in privacy law and in the ECHR
Article 8, cf. Ot.prp. No. 108 (2008–2009) page 51 the following. Worth noting in this
connection is that the general provision on purposefulness in section 4 of the Act opens
so that information obtained for police purposes can also be processed for other purposes
where this is authorized by law. The special provision in § 12 sixth paragraph that the information in
The DNA register "only [shall] be used in criminal justice", is a tightening in relation to § 4.
This tightening shows in my view that the purpose statement in connection with the use of
The DNA register was supposed to be absolute.
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(125) The legislature has therefore not assessed - and consequently not chosen - a registration scheme
which shall also be available for use for civil purposes. This page knows
the legislative process may in itself have an impact on the proportionality assessment,
cf. the Grand Chamber decision of 22 April 2013 Animal defenders international against the United Kingdom
section 108. In addition, the right to use the DNA register also for civilian purposes
makes registration more intrusive. I refer in this context to
Grand Chamber decision of 4 December 2008 S. and Marper v. United Kingdom where the EMD in
section 75 states the following about the use of
DNA register for mapping relationships:
«The Court notes in this regard that the Government accepted that DNA profiles could
be, and indeed had in some cases been, used for familial searching with a view to
identifying a possible genetic relationship between individuals. They also accepted the
highly sensitive nature of such searching and the need for very strict controls in this
respect. In the Court's view, the DNA profiles' capacity to provide a means of identifying
genetic relationships between individuals (see paragraph 39 above) is in itself sufficient to
conclude that their retention interferes with the right to the private life of the individuals
concerned. The frequency of familial searches, the safeguards attached thereto and the
likelihood of detriment in a particular case are immaterial in this respect . »
(126) Section 39, to which the EMD refers here, deals with kinship searches in criminal justice :
«Familial searching is the process of comparing a DNA profile from a crime scene with
profiles stored on the national database, and prioritizing them in terms of 'closeness' to a
match. This allows possible genetic relatives of an offender to be identified. Familial
searching might thus lead to revealing previously unknown or concealed genetic
relationships. »
(127) The possibility of searching the DNA register for purely civilian purposes, more specifically for mapping
of paternity according to the Children Act § 24, is in addition to and goes in principle also further than
kinship search to use criminal justice.
(128) The circumstances I have now pointed out, in my view, mean that the registration of A is
disproportionate. Although the conviction of him applies to serious matters, is
the probability that DNA registration in this type of offense will help to clarify
later offenses, small. As long as the nature of the offense has no bearing on the initial
the registration or for the possibility of having the registration deleted, doubts are left
the registration is sufficiently relevant and necessary for the purpose. When in addition it is
opened access to use the DNA register for purely civilian purposes, I find that the limits of it
disproportionate is exceeded.
(129) On this basis, my conclusion is that the registration should be deleted, and that A be awarded
legal costs for all instances.
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(130) Judge Lindsetmo:
I essentially and in the result agree with
first voter, judge Bergsjø.
(131) Judge Matheson:
Likewise.
(132) Judge Webster:
Likewise.
(133) Following the vote, the Supreme Court dismissed this
JUDGMENT:
1.
The appeal is rejected.
2.
Legal costs are not awarded for any instance.