PROCEDURE

The case originated in an application (no. 8806/12) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Jean-Michel Aycaguer (“the applicant”), on 20 January 2012.

The applicant was represented by Ms A.-M. Mendiboure, a lawyer practising in Bayonne. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs with the Ministry of Foreign Affairs.

The applicant alleged, in particular, that his conviction for having refused to undergo DNA profiling had amounted to an unjustified infringement of his right to respect for his private life within the meaning of Article 8 of the Convention.

On 26 March 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1959 and lives in Ossès.

On 17 January 2008 he attended a rally organised by a Basque agricultural trade union and by the GFAM (a mutual-benefit land alliance), the “Lurra”, on the occasion of a meeting of the Technical Committee of the Land Use and Rural Settlement Corporation (SAFER) in the Pyrénées-Atlantiques Département. That meeting had been aimed at producing an opinion on the use of the land comprising a farm which Mr F.L. had been operating for several years. The rally was held in a political and trade-union situation where tensions had been heightened by the fact that the majority agricultural union in the Département was backing candidates other than Mr F.L. At the end of the meeting scuffles broke out between the demonstrators and the gendarmerie.

The applicant was placed in police custody and brought before the Bayonne Criminal Court under “immediate summary trial” procedure, and charged with intentional violence not entailing total unfitness for work, against gendarmes whose identity has not been established, and against a person exercising public authority, using or threatening to use a weapon, in this instance an umbrella.

By judgment of 13 March 2008, the applicant was sentenced to two months’ imprisonment, suspended, for having struck gendarmes with an umbrella, which incident had not entailed unfitness for work on the latter’s part. In its judgment, the court noted that the applicant had refused to answer questions during the investigation or to admit to any wrongdoing, and had denied that he had been carrying an umbrella. The judges noted that witnesses had nevertheless stated that he had attempted to cross the barrier by clambering over demonstrators and trying to hit the gendarmes with his umbrella. The applicant pointed out that he had refrained from appealing in order to calm the situation and in the framework of a friendly settlement of the dispute that had been the cause of the rally.

On 24 December 2008, following a request from the Bayonne Public Prosecutor’s Office, the applicant was ordered by the police to give a DNA sample, on the basis of Articles 706-55 and 706-56 of the Code of Criminal Procedure (CPP). He was brought before the Criminal Court on 19 May 2009 for refusing to give the sample.

By judgment of 27 October 2009, the Bayonne Regional Court imposed on the applicant a fine of five hundred euros.

On 3 February 2011 the Pau Court of Appeal upheld that judgment. As regards the legal aspect of the offence, it stated, in particular, that unlike the applicants in the case of S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, ECHR 2008), the applicant had been convicted, rather than suspected, of an offence, which precluded him from arguing that the impugned judgment had entailed a disproportionate interference with his private life. Relying, in particular, on the 16 September 2010 decision of the Constitutional Council (see paragraph 16 below), it held that “the provisions of national law applied [to the applicant] were such as to reconcile respect for private life and the protection of public order in a manner that was neither manifestly unbalanced nor in breach of the requirements of Article 8 of the Convention”. In connection with the substantive aspect of the offence, the Court of Appeal dismissed the applicant’s plea that a sample had already been taken from his headgear during his police custody and that he was entitled to refuse further sampling, given that there had been no DNA profiling the first time.

The applicant lodged an appeal on points of law. His first plea was that the sample geared to identifying his DNA and storing the corresponding data amounted to a disproportionate interference with his private life, having regard to the duration of the data storage and his personal situation (an easily identifiable person who was socially well-established, with a job, a family and a fixed abode). In his second plea, he argued that the Court of Appeal had provided no reasons for its decision in connection with the substantive aspect of the offence.

By judgment of 28 September 2011, the Court of Cassation dismissed the applicant’s appeal on points of law as follows: “... the Court of Appeal responded adequately and cogently to the main points of the pleadings submitted to it, and characterised all the substantive and purposive aspects of the offence of refusing to undergo a biological test, of which it found the defendant guilty, in full compliance with the provisions of Article 8 of the Convention.”