Information Note on the Court’s case-law 239

April 2020

Dragan Petrović v. Serbia - 75229/10

Judgment 14.4.2020 [Section IV]

Article 8

Article 8-1

Respect for private life

Insufficient foreseeability and safeguards of domestic law governing the taking of DNA samples through buccal swabs in the context of criminal investigation: violation

Facts – In the context of a criminal investigation, a sample of the applica nt's saliva was taken for the purposes of a DNA analysis.

Law – Article 8: The taking of a DNA sample from the applicant amounted to an interference with his “private life”. The fact that the applicant had agreed to give a sample of his saliva to the polic e officers was, in that context, of no relevance, since he had only done so under the threat that either a saliva sample or a blood sample would otherwise be taken from him by force.

The interference had not been “in accordance with the law”, since the do mestic legal provisions in question should have been, inter alia , foreseeable as to their effects for the applicant. In particular, the order authorising the police to take a sample of the applicant’s saliva had not referred to any specific legal provision and there was no specific reference to the taking of a DNA sample in the relevant provisions of the Code of Criminal Procedure. Moreover, when taking the sample, the authorities had not prepared an official record of the procedure, as required by domestic law.

Finally, the applicable domestic law did not include several safeguards laid down, for example, in the more recent Code of Criminal Procedure adopted in 2011. In particular, the new Code, inter alia , specifically: (i) referred to the taking of DNA sa mples by means of a “buccal swab”; (ii) stated that the procedural steps in question had to be carried out by an expert; and (iii) limited the circle of persons from whom a buccal swab sample might be taken without consent. Concerning that last point, unde r the provisions in force at the relevant time, a blood sample could be taken from, or “other medical procedures” undertaken in respect of, any given person if that was deemed medically necessary in order to establish facts “of importance” to the criminal investigation, which allowed such procedures in respect of a potentially very large group of persons. By contrast, the new Code of Criminal Procedure indicated that buccal swab samples might be taken only from a suspect or, in order to “eliminate a suspici on of being connected to a criminal offence”, from the victim or another person found at the scene of the crime. In those circumstances, it would be reasonable to assume that by adopting the clearly more detailed provisions, the respondent State had itself implicitly acknowledged the need for a tighter regulation.

Conclusion : violation (six votes to one).

The Court also found unanimously no violation of Article 8 as regards the search of the applicant’s home.

Article 41: EUR 1,500 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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