06 May DNA sampling was not in accordance with Article 8 of the Convention

In the case of Dragan Petrović v. Serbia (application no. 75229/10, 14.04.2020) the European Court of Human Rights held, unanimously, that there had been no violation of Article 8 (right to respect for private life) of the European Convention on Human Rights as regards a police search of the applicant’s apartment, and by six votes to one, that there had been a violation of Article 8 of the European Convention owing to the taking of a DNA saliva sample from the applicant. 

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, the Court found that taking of the DNA sample 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.

References from the European Court of Human Rights