COURT OF MAASTRICHT
Criminal Law Sector
Prosecution number: 03/550823-09
Petition number: 10/468
Order of the District Court of Maastricht, single chamber in criminal cases, on the objection under Article 7 of the DNA Examination of Convicted Persons Act of:
(Defendant), born at (place of birth) on (date of birth) 1995
(Defendant) has an address for service in this case in Maastricht, at the office of her counsel Mr. S. Weening.
1. The course of the proceedings
The appeal was received at the registry of the court on July 21, 2010. (Defendant) was summoned to appear at the hearing on November 5, 2010. On this date the court heard (defendant), counsel for (defendant) Mr. Weening, and the prosecutor in chambers. Sentencing was set for today.
2. The facts
In a judgment dated March 11, 2010, (defendant) was sentenced by the juvenile court in Maastricht to, in summary, community service for 40 hours, or in the alternative, 20 days of suspended imprisonment with a probationary period of 2 years, for openly committing acts of violence against persons committed in association.
By order of the public prosecutor in Maastricht, cell material was taken from (defendant) on July 7, 2010 for the purpose of determining and processing her DNA profile in the national DNA bank.
3. The content of the objection
The objection opposes the determination and processing of (suspect's) DNA profile in the national DNA bank.
4. The assessment
4.1. The court has jurisdiction over the present petition, which was timely filed, since the conviction of (defendant) that led to the collection of cellular material was made by this court in the first instance.
4.2. Counsel invokes the exception in Article 2(1)(b) of the
Act DNA testing of convicted persons, hereinafter referred to as the Act, and states that the determination and
processing the DNA profile, given the particular circumstances surrounding the crime
was committed, the small sentence imposed by the juvenile court and no
risk of recidivism, is inconsistent with the meaning and intent of the Act.
On this basis, (defendant) believes that her objection should be sustained and that the court should order that her cellular material, which was collected on July 7, 2010, be
destroyed.
4.3. The prosecutor stated his position on the present appeal at
in writing, which writing is attached to this decision and the contents of which are set out as herein
should be considered intercalated.
4.4.1. Pursuant to Article 2 of the Act, on the order of the public prosecutor at the court that rendered judgment in first instance, cellular material is taken from a convicted person and his/her DNA profile is determined. Apparently, this article requires that it is a conviction for a crime as defined in Article 67, paragraph 1, of the Code of Criminal Procedure. Since (defendant) was convicted for violation of Article 141 of the Penal Code and this article of the law falls under Article 67, first paragraph, under a, of the Code of Criminal Procedure, (defendant) can be understood under the scope of Article 2 of the Act.
4.4.2. At issue is whether (the defendant) can fruitfully rely on the exception provision of
Section 2 of the Act may invoke, namely, whether it is reasonable to assume that determining
and process the DNA profile, given the nature of the crime or the particular
circumstances under which the crime was committed will not be able to be significant for
the prevention, detection, prosecution and trial of crimes of the
convict.
According to the legislative history, the criterion of "nature of crime" refers to crimes where DNA testing cannot contribute to detection. This is not the case in this instance. The criterion "special circumstances under which the crime was committed" is related to the person of the convicted person. Since (the accused) has not come into contact with the police and/or the judicial authorities before, further interference by the Child Care and Protection Board is not indicated according to the council report of January 14, 2010 and (the accused) has not come into contact with the police and/or the judicial authorities after the proven fact, whereby the court has also taken into account that (the accused) has stated at the hearing that there are no longer any problems at school, which finds support in the council report, which underlines the one-off nature of (defendant's) derailment, the court is of the opinion that in this case there are special circumstances that justify invoking the exception clause.
4.4.3. The objection should be upheld and the court will grant the officer of
justice orders to ensure that (defendant's) cellular material is destroyed immediately.
5. Decision
Upholds the objection and orders the district attorney to ensure that (defendant's) cellular material is destroyed immediately.
This decision was rendered by Mr. R.P.J. Quaedackers, Judge, in the presence of Mr. L. Berkers, Registrar, and pronounced in open court on November 19, 2010.
