Collection of biological material against an accused person’s will
Accused person’s genetic profile
Right to the privacy of personal life
RULING Nº 155/07
2 of March of 2007
Various provisions of the Portuguese code of criminal procedure restrict certain fundamental rights, freedoms and safeguards. A decision was sought as to whether such restriction is compatible with the Constitution. The Constitution does not completely prohibit legal restrictions on rights, freedoms and safeguards, but does require that they satisfy various strict conditions (both formal and substantive). A restriction on rights, freedoms or safeguards is constitutionally valid only if:
i. the Constitution allows it;
ii. it has sufficient basis in an act of parliament or an authorised legislative decree;
iii. its purpose is to protect another constitutionally protected right or interest;
iv. the restriction is necessary to protect that other right or interest, appropriate for that purpose and proportionate to it;
v. it is general and abstract in character, has no retroactive effect and diminishes neither the extent nor the scope of the core content of constitutional rules.
Placing an instrument in an accused's mouth in order to take a saliva sample against his express wishes, even if it is done without injuring him or her or affecting his or her health, is bound to be regarded as in itself a physical assault, contravening the constitutionally protected right to physical integrity.
Rules which provide for compulsory examination of an accused in order to take a saliva sample against his or her will and under threat of physical force may, however, contravene the general freedom to take action without prior permission from a court.
From the privacy standpoint, a compulsory examination performed against the accused's wishes and under threat of physical force in order to take a saliva sample for a genetic analysis may constitute an unauthorised interference with his or her private life in the absence of prior court permission.
From the information standpoint, and whether the right to self-determination is viewed as inherently involving a right, freedom and guarantee securing self-determination in matters of information, or as incorporating a right of habeas data, or as primarily a matter of confidentiality in connection with the right to respect for private life, the fact is that the action in question again clashes with rights, freedoms and safeguards.
In the Court's view, the right not to incriminate oneself embraces respect for an accused's wish to remain silent and not have forcibly obtained samples used against him or her in criminal proceedings, as in the case of taking a saliva sample for a DNA test. However, taking a sample is not the same thing as taking a statement and therefore does not breach the accused's right not to incriminate him or herself or admit guilt. Taking a sample merely allows an expert evaluation whose outcome is uncertain, and although it requires more than just passivity it cannot be described in terms of being made to incriminate oneself and therefore does not contravene the privilege concerned.
I. The case arose from proceedings potentially involving two murders. Biological samples, some of them belonging to the culprits, were collected at the scene of the crime. It was considered essential to take biological samples from the accused so as to establish their genetic profile and compare it with the biological samples taken at the scene of the crime. The accused refused consent. However, as accused persons "may be compelled to undergo examination by decision of the competent judicial authority" they were ordered to attend the National Forensic Institute so that biological samples could be taken "in so far as strictly necessary, appropriate and indispensable and for use in accordance with the purpose for which they had been taken". The next day, however, one of the accused requested that the evidence obtained by compulsorily taking the saliva sample be treated as illegal.
The rules whose constitutionality was challenged were intended to safeguard constitutionally protected interests (including those inherent in criminal proceedings such as administration of justice and establishment of the truth). They were of a general and abstract character, did not have any retroactive force, did not do away with the rights, freedoms and safeguards at issue and therefore did not harm the entitlements with which the case was essentially concerned. In addition, the Constitution did not entirely prohibit the compulsory taking of biological samples (including saliva samples) or their subsequent genetic analysis. However, it was essential to check that the rules in question complied with the constitutional requirements of strict appropriateness, necessity and proportionality.
II. If they did so, in the Court's view, the resultant restrictions on fundamental rights did not contravene any of the secondary principles referred to as they were an appropriate means of pursuing the intended objectives, were necessary to attain them, did not stem from any manifestly mistaken course of action by the legislature and were not manifestly excessive or disproportionate. Nor, in the present case, did the absence of criteria for restriction of fundamental rights contravene the Constitution. The case involved a legal rule which allowed biological samples - saliva in this instance - to be compulsorily taken purely in order to establish the accused's genetic profile for purposes of comparison with other biological samples found at the scene of the crime. This meant that the test was limited in scope and precluded treating the samples in such a way as to have access to sensitive information over and above what was indispensable for the intended purpose.
However, as the challenged procedure, crucially, ran counter to basic rights, freedoms and safeguards it was only permissible during the inquiry with prior authorisation from the investigating judge. Referring the matter to the investigating judge afterwards (as in the present case) was worthless as it could not remove the restrictions on certain rights (the right to physical integrity or the right to respect for private life) which had been irremediably breached.
The Court examined the interpretation of the code of criminal procedure which allowed the forcible taking of biological samples from an accused without judicial permission in order to produce a genetic sample when the accused had expressly refused to cooperate or to allow the sample to be taken. It held that this contravened Articles 25, 26 and 32.4 of the Constitution. It also held to be contrary to Article 32.4 of the Constitution the provision of the code of criminal procedure that evidence obtained from the sample taken in the manner described was valid and could therefore be used and assessed.
In this judgment the Court referred to extensive comparative case-law, including judgments of the Spanish Constitutional Court, Germany's Federal Constitutional Court and the European Court of Human Rights.
In particular regarding DNA data banks, the point was made that since the early 1990s various international institutions had advised using DNA analysis in the criminal justice system and even setting up internationally accessible data banks [Recommendation R (92) 1 adopted by the Committee of Ministers of the Council of Europe on 10 February 1992]. It was also pointed out that DNA data banks had been set up in dozens of countries worldwide; in Europe, most countries had drafted legislation on DNA data banks for use in criminal investigation and/or civil identification and the results were extremely positive in identification of missing persons, identification of offenders, clearing innocent people, establishing links between different types of criminal behaviour, and international co-operation in identification work.