Unauthorized consent to obtain a DNA sample is equivalent to non-consent. Taking a saliva without real consent violates the right to privacy

JUDGMENT

Dragan Petrovic v. Serbia 14.04.2020 (no. 75229/10)

see here

SUMMARY

The case concerned a police search of the applicant’s flat and the taking of a DNA sample during a
murder investigation.

The Court found in particular that the search warrant had been specific enough and had been
attended by adequate and effective safeguards against abuse during the search itself. For instance,
the applicant, his lawyer and the owner of the apartment had been present during the search.

However, it found that the taking of the DNA saliva sample had not been “in accordance with the
law” within the meaning of Article 8. The measure had been carried out under a previous Code of
Criminal Procedure, which had only authorised that blood samples could be taken, or “other medical
procedures” carried out. Furthermore, the Code had been updated in 2011 with new safeguards
related to DNA mouth swabs, an implicit acknowledgement that they had been lacking previously

PROVISIONS

Article 8

Article 6§3 (α)

PRINCIPAL FACTS

The applicant, Dragan Petrović, is a Serbian national who was born in 1985 and lives in Subotica
(Serbia).

In July 2008 the police received information that the applicant might have been involved in the
severe beating and subsequent death of an elderly man. On the basis of that information, an
investigating judge, in two separate decisions, ordered a search of the applicant’s flat and the taking
of a saliva sample from him for a DNA analysis.

The search was to focus on objects taken following the murder, notably a “black leather jacket”, and
“shoes and other objects” which could be connected to the crime. The police eventually found two
handguns in the flat, about which the applicant denied having any knowledge.

The DNA saliva test was required to see for comparison with DNA data found at the murder scene.
The judge authorised the police to take the sample, or a sample of the applicant’s blood, by force if
necessary, with the assistance of medical professionals. In the presence of his lawyer the applicant
agreed to give a saliva sample to the officers. It would appear, however, that no official record of
how the order was carried out was produced by the police.

In August 2008 the police informed the investigating judge that it had decided to press charges
against the applicant for illegal possession of firearms. The authorities found no match between the
applicant’s DNA sample and the biological traces found at the crime scene.

In August 2008 the applicant lodged an appeal with the Constitutional Court alleging a violation of
his right to respect for his home and his private life, referring to Article 8 of the Convention and
Articles 25 and 40 of the Constitution. The Court dismissed his appeal on the merits in October 2010.

THE DECISION OF THE COURT…

Article 8

The Court first rejected the Government’s objections that the applicant had lodged his application
outside the six-month time-limit and that he had not exhausted domestic remedies, finding in
particular that an appeal to the Constitutional Court was an effective remedy, which he had used.
On the merits of the case, the Court first dealt with the question of the search of the applicant’s flat.
It held that the search had been an interference with his right to respect for his home which had
been provided for by law and had served a legitimate aim. The question was therefore whether it
had been proportionate, that is whether it had been “necessary in a democratic society”.

It noted that the search warrant had been issued in the context of a murder investigation and had
been specific in what the police had been seeking, namely a black leather jacket, shoes and other
objects related to the crime. The Court therefore disagreed with the applicant’s argument that the
search warrant had been vague.

The Court also found that the applicant had been afforded adequate and effective safeguards
against any abuse during the search itself, in particular because he, his lawyer and the owner of the
apartment had been present when it was carried out. Moreover, the lawyer had signed the seizure
certificate and the official record of the search-and-seizure operation, raising no objections to the
search procedure as such, only to the reasoning of the warrant.

The Court concluded that the interference in question had thus been “necessary in a democratic
society” and there had been no violation of Article 8 owing to the police search of the apartment.
Dealing next with the taking of the DNA sample, the Court found that that act had amounted to an
interference with the applicant’s right to respect for his private life. The fact that he had agreed to the procedure was of no relevance as he had only done so under the threat that otherwise a saliva
or blood sample would be taken by force.

The Court noted that the order for the DNA sample had not referred to any legal provision, while the
relevant Article of the Code of Criminal Procedure, Article 131 §§ 2 and 3, only provided that a court
could order that a blood sample be taken, or that “other medical procedures” be carried out if that
was deemed medically necessary to establish facts “of importance” to a criminal investigation. In
addition, according to the case file, the authorities had failed to prepare an official record of the
procedure, failing to comply with Article 239 of the Code of Criminal Procedure.

The Court also noted that Article 131 §§ 2 and 3 had lacked various safeguards related to the taking
of DNA samples, which had subsequently been introduced in the amended 2011 Code of Criminal
Procedure. Those new safeguards included a specific reference to the taking of mouth swabs, the
need to use an expert to carry out the procedure, and a limit on the range of people from whom
mouth swabs could be taken without consent.

The Court thus considered that by putting more detailed provisions in the 2011 Code, the
respondent State had itself implicitly acknowledged the need for tighter regulation in this area.
The Court concluded that the interference with the applicant’s private life by taking the DNA sample
had not been in accordance with the law and there had been a violation of Article 8.

Article 6

The applicant also complained that he had been denied the right to be informed promptly and in
detail by the authorities of the fact that he was suspected of a specific criminal offence, contrary to
Article 6 § 3 (a) of the Convention.

Accepting that the applicant’s submissions on this point were a separate complaint rather than an
addition to his arguments under Article 8, the Court found that the applicant had never raised this
question domestically. This part of the application therefore had to be rejected for non-exhaustion
of domestic remedies.

Just satisfaction (Article 41)

The Court held by six votes to one that Serbia was to pay the applicant 1,500 euros (EUR) in respect
of non-pecuniary damage and EUR 1,200 in respect of costs and expenses.

Separate opinions

Judge Mourou-Vikström expressed a dissenting opinion which is annexed to the judgment.


ECHRCaseLaw

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