Judgment of the ECHR of April 14, 2020 in the case "Petrovich v. Serbia" (application no. 75229/10).
In 2010, the applicant was assisted in preparing a complaint. Subsequently, the complaint was communicated to Serbia. The case successfully examined a complaint about taking a saliva sample from the applicant for DNA analysis in the framework of a criminal investigation. The case violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
As part of the criminal investigation, a saliva sample was taken from the applicant for DNA analysis.
QUESTIONS OF LAW
Compliance with Article 8 of the Convention. Taking a DNA sample from the applicant amounted to an interference with his “private life”. The fact that the applicant had consented to this was irrelevant in the context of the present case, as the applicant had consented under the threat of being forced to take samples of his saliva or blood otherwise.
The interference was not “prescribed by law” as the relevant provisions of Serbian law had to be, inter alia, worded in such a way that the applicant could foresee the consequences of their application. In particular, the order by which the police officers were authorized to take a saliva sample from the applicant for DNA analysis did not refer to any specific rules of domestic law. The relevant provisions of the Serbian Code of Criminal Procedure did not contain any specific rules regarding the taking of samples for DNA analysis. Moreover, when the sample was taken, the representatives of the authorities did not draw up an official protocol on this procedure, as required by Serbian legislation.
In conclusion, the applicable Serbian law did not contain a number of guarantees included, for example, in the 2011 edition of the Serbian Code of Criminal Procedure. In particular, the new Criminal Procedure Code, inter alia, specifically (i) specifies the procedure for taking samples for DNA analysis using a “mouth swab”, (ii) states that the procedural actions in question can only be carried out by an expert, and (iii) restricts the circle of persons from whom a smear can be taken without their consent. With regard to the latter provision, according to the norms in force at the time, a blood sample could be taken or "other medical actions" could be carried out in relation to a specific person if it was considered necessary from a medical point of view to establish facts "relevant" for the investigation of a criminal case , which potentially made it possible to apply such a procedure to a very wide range of people. By comparison, Serbia's new Criminal Procedure Code stipulates that a swab from the oral mucosa can only be taken from a suspect or “in order to eliminate suspicion of a criminal offense” from a victim or other person at the scene. In such circumstances, it can reasonably be assumed that, by adopting more concretely formulated legal norms, the Serbian authorities clearly recognized the need for detailed legal regulation of this issue.
There was a violation of Article 8 of the Convention in the case (adopted by six votes in favor, one against).
The Court also held unanimously that there was no violation of Article 8 of the Convention on account of the search carried out at the applicant's house.
Application of Article 41 of the Convention. The Court awarded the applicant EUR 1,500 in respect of non-pecuniary damage.