JUDGMENT Given on 9 December 2020 by the Supreme Court

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JUDGMENT Given on 9 December 2020 by the Supreme Court JUDGMENT given on 9 December 2020 by the Supreme Court composed of Justice Jens Edvin A. Skoghøy Justice Henrik Bull Justice Wenche Elizabeth Arntzen Justice Espen Bergh Justice Kine Steinsvik HR-2020-2372-A, (case no. 20-045136SIV-HRET) Appeal against Gulating Court of Appeal’s judgment 20 December 2019 A (Counsel Christoffer Adrian Falkeid) v. The State represented by the Ministry of Justice and Public Security (Counsel Knut-Fredrik Haug-Hustad) This is a translation of the ruling given in Norwegian. The translation is provided for information purposes only. 2 (1) Justice Bull: Issues and background (2) The case concerns the validity of an administrative decision to retain a DNA profile in the police’s DNA database. The issue is whether such retention is a disproportionate interference with private life and a violation of Article 8 of the European Convention on Human Rights (ECHR). (3) On 4 August 2016, A was sentenced to 18 days in prison and ordered to pay a fine of NOK 40 000 for attempted driving with excess alcohol. The alcohol level in his blood was analysed at 0.175 per cent. After the judgment had become final, the police decided on 13 January 2017 in accordance with the Police Databases Act to have A’s DNA profile retained in the police’s DNA database. He was requested to provide a DNA sample and, at the same time, informed of his right to complain. A complained against the decision, without stating any grounds. On 5 October 2017, the Regional Public Prosecution Office in Rogaland rejected his complaint, arguing briefly that the police’s decision to retain his DNA was “in line with the legal basis and the guidelines provided for such a measure”. After some discussion between the police and A, A gave a DNA test at the police station on 4 April 2017. (4) Next, A brought an action against the State represented by the Ministry of Justice and Public Security, requesting that his DNA profile be deleted. On 21 December 2018, Haugaland District Court ruled as follows: “1. The State represented by the Ministry of Justice and Public Security is to ensure deletion of A’s DNA profile in the DNA database. Time for performance is 30 days of the service of this judgment. 2. The State represented by the Ministry of Justice and Public Security is to cover A’s costs in the District Court of NOK 9 220. Date for performance is 14 days of the service of this judgment.” (5) The State represented by the Ministry of Justice and Public Security appealed to Gulating Court of Appeal. In the Court of Appeal, A requested, instead, that the Public Prosecutions Office’s decision to retain his DNA be declared invalid. On 20 December 2019, Gulating Court of Appeal ruled as follows: “1. The claim against the State represented by the Ministry of Justice and Public Security is dismissed. 2. Costs in the District Court are not awarded.” (6) A has appealed to the Supreme Court, challenging the Court of Appeal’s application of the law. The parties’ contentions (7) The appellant ‒ A ‒ contends: HR-2020-2372-A, (case no. 20-045136SIV-HRET) 3 (8) The retention of A’s DNA profile in the police’s DNA database because of a sentence for attempted driving with excess alcohol is a violation of Article 8 ECHR on the right to respect for private life. The measure is a disproportionate interference with this right. (9) According to case law from the European Court of Human Rights ‒ the ECtHR ‒ retention of a DNA profile is a serious interference with a person’s right to respect for private life, and the Convention States have a narrow margin of appreciation to determine what constitutes proportional interference. This is also expressed in the Supreme Court judgment HR-2019- 1226-A. The facts of the case must be assessed individually and balanced against the legitimate purpose of the retention practice, which is to prevent crime and disorder. (10) The seriousness of the offence is key in the assessment of proportionality in this case. As such, the Norwegian set of rules sets a very low threshold for retention. Section 12 subsection 2 of the Police Databases Act permits registration of all persons who have been sentenced for an act that carries a custodial sentence. For capacity reasons, this threshold has been slightly increased by the Director of Public Prosecutions, but it is still low. Although ordering DNA registration after driving with excess alcohol will in itself not always be disproportionate, the, after all, limited seriousness of A’s offence clearly suggests that in this case it is. (11) The virtually indefinite storage period ‒ five years after the death of the data subject – and the scant possibility of having one’s DNA profile deleted, also indicate that the retention of A’s DNA profile is disproportionate. (12) In addition, after the Supreme Court ruling HR-2018-2241-U allowing the use of a DNA profile in the police’s DNA database in a paternity case, there is a risk that retained DNA profiles will be used for other purposes than administration of criminal justice. (13) The legislature’s own proportionality assessment is based on an erroneous perception of DNA retention as a moderate interference with private life, and can thus not be afforded weight. The basis for the assessment is incorrect. (14) When considering the facts of the case in the light of ECtHR case law, particularly the judgment 13 February 2020 Gaughran v. the United Kingdom, also concerning driving with excess alcohol, the conclusion must be that the registration of A is disproportionate and incompatible with Article 8 ECHR. The Norwegian criteria for retaining the DNA of criminal convicts are similar to those applicable in the UK, and in Gaughran, the ECtHR found that the retention was disproportionate. (15) A has requested the Supreme Court to rule as follows: “1. Rogaland Prosecution Authority’s administrative decision of 5 October 2017 is invalid. 2. A is awarded costs in the District Court and in the Court of Appeal.” (16) The respondent ‒ the State represented by the Ministry of Justice and Public Security ‒ contends: (17) Retaining A’s DNA profile in the police’s DNA database is not incompatible with Article 8 ECHR. HR-2020-2372-A, (case no. 20-045136SIV-HRET) 4 (18) Several of A’s more general objections against the Norwegian system were assessed in HR- 2019-1226-A, where the Supreme Court found that the characteristics pointed out did not render the measure a disproportionate interference with the right to respect for private life. Subsequent ECtHR rulings on the same issue confirm that the Supreme Court’s assessment was correct. (19) The only absolute requirement set by the ECtHR, is that the threshold must not be so low as to result in “blanket and indiscriminate” retention. This is not the case for the Norwegian practice, due to, among other things, the requirement of a legally binding judgment and a certain level of gravity. (20) Gaughran v. the United Kingdom demonstrates that the ECtHR does not consider the Norwegian storage period of five years after the data subject’s death to be indefinite – as opposed to the UK system with no time limit at all. Although the possibility of deletion is restricted, it does not make the Norwegian system a disproportionate interference with private life. In addition, in the wake of HR-2019-1226-A, the Director of Public Prosecutions has stressed the significance of applying the set of rules in accordance with Norwegian and ECtHR case law. (21) The Supreme Court ruling HR-2018-2241-U on the use of a DNA profile in a paternity case dealt with an unusual situation, and gives little guidance on the general possibility of using DNA for other purposes than administration of criminal justice. Even the use that was accepted has now been proposed prohibited in a discussion paper from the Ministry of Justice and Public Security. (22) The legislature’s proportionality assessment was thorough and carefully discussed by the Supreme Court in HR-2019-1226-A. (23) Nor may an overall assessment of all aspects of the case render the retention of A’s DNA profile, based on his conviction for attempted driving with excess alcohol, disproportionate and incompatible with the ECHR. Gaughran v. the United Kingdom supports this conclusion. (24) The State represented by the Ministry of Justice and Public Security has requested the Supreme Court to rule as follows: “The appeal is dismissed.” My opinion Legal starting points ‒ the Supreme Court judgment HR-2019-1226-A (25) The question of whether the Norwegian system for retention of DNA profiles in the police’s DNA database may be justified under Article 8 ECHR on the right to respect for private life was carefully considered in the Supreme Court’s judgment HR-2019-1226-A. That case concerned DNA retention on the basis of a prison sentence of eighteen months, six of which were suspended, and a fine of NOK 225 000 for violation of the Tax Assessment Act. With a 4–1 vote, the Supreme Court ruled that the measure was not incompatible with Article 8 ECHR. The judgment also provides an outline of the system of DNA retention, the applicable set of rules, the legislative history and the ECtHR’s rulings on the application of Article 8 HR-2020-2372-A, (case no. 20-045136SIV-HRET) 5 ECHR in relation to retention practices in the administration of criminal justice in other European countries. Referring to this outline, I will only give a brief presentation of the Norwegian system and relevant ECtHR case law.
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