DISSENTING OPINION OF JUDGE MOUROU-VIKSTRÖM

(Translation)

I cannot subscribe to the majority ’ s conclusion that the taking of a sample from the applicant for the purposes of analysing his DNA profile was not in accordance with the law on the grounds that the latter was not foreseeable.

It should be noted that the legislative provision in force at the relevant time – Article 131 §§ 2 and 3 of the Code of Criminal Procedure – provided for a blood sample to be taken or other medical procedures to be carried out, subject to judicial authorisation, if this was necessary for the establishment of facts of importance to a criminal investigation.

The legislation went further, providing for these measures to be applied forcibly if the person concerned failed to cooperate.

On the basis of this provision and the public prosecutor ’ s request, the judge ordered a saliva sample, or alternatively a blood sample, to be taken from the applicant, by force if necessary. The applicant consented to a buccal swab in the presence of his lawyer.

The judge therefore acted in full compliance with the law, which in my view was perfectly clear and foreseeable. The law without doubt covered the taking of a sample of saliva for the purposes of DNA identification, which represents key evidence in criminal cases and an essential tool for investigators and investigating judges in establishing the truth. How can the words “other medical procedures” be construed not to encompass this type of evidence? It would have been possible, under the law, to just take a blood sample; this, like a buccal swab sample, would have enabled the applicant ’ s DNA profile to be determined. But the judge prioritised the taking of a buccal swab sample, a method that was less invasive and less unpleasant for the applicant.

The words “other medical procedures” undoubtedly cover the taking of DNA samples. The only restriction on the medical procedures that may be ordered is that they must not cause harm to the health of the person concerned. It goes without saying that the taking of a sample is painless and has no health implications. It falls entirely within the scope of the law.

It is therefore clear that the impugned measure resulted from an order made by an inherently independent judge and did not cause any unpleasantness for the applicant. Lastly, it scarcely needs to be said that the results of the DNA test made it possible to quickly rule out evidence that could have implicated the applicant directly in a crime. The sample was taken on 30 July 2008 in response to an allegation that the applicant had been involved in the murder of an elderly man. By 11 September 2008 it had been established that there was no match between the applicant ’ s DNA and the traces found at the scene.

Hence, the taking of a sample allowed evidence against the applicant to be definitively ruled out.

The new Code of Criminal Procedure makes express provision for a buccal swab sample to be taken without the consent of the person concerned. The conditions in which the sample was taken in the present case are thus also compatible with the new criminal-law rules.