CEDH · CASELAW;CLIN;ENG — 15 mai 2018

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Malta (dec.) - 41079/16 Decision 15.5.2018 [Section IV] Article 8 Article 8-1 Respect for private life Compulsory provision of buccal swabs from spouse of the accused in criminal proceedings: inadmissible Facts – Criminal proceedings were instituted against the applicant’s husband. He was charged with wilful homicide following a shooting which took place in his and the applicant’s residence. In the proceedings it was alleged that the applicant had an extramarital relationship with the victim, which had led to his death. During the subsequent criminal inquiry the Court of Magistrates authorised the taking of buccal swabs from the applicant. The Constitutional Court found that the impugned measure would not constitute a breach of her rights under Article   8 of the Convention. Law – Article 8: The taking of a mouth swab in order to obtain cellular material from the applicant amounted to an interference with her right to respect for private life. Although the applicant had not yet been subjected to the swab, the measure had been ordered by a court and was not subject to any further appeal and therefore executable. Thus, the applicant could be considered as a victim of the interference at issue. Recourse to such medical procedures for compulsory DNA testing, particularly when minor, was not a priori prohibited in order to obtain evidence related to the commission of a crime when the subject of the test was not the offender, but a relevant witness. The ratio behind the exception of spousal testimonial privilege could only apply to oral evidence (testimony), as opposed to real evidence, which existed independently of a person’s will. Similarly, the right not to incriminate oneself was primarily concerned with respecting the will of an accused person to remain silent, it did not extend to the use, in criminal proceedings, of material which could be obtained from the accused through the use of compulsory powers but which had an existence independent of the will of the suspect such as, inter alia , documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples and bodily tissue for the purpose of DNA testing. The impugned measure was “in accordance with the law” and pursued a “legitimate aim” – namely the protection of society by “the prevention of crime”, that concept encompassing the securing of evidence for the purpose of detecting as well as prosecuting crime. Considering whether the measure had been necessary in a democratic society, the Court noted, firstly, that the situations of a witness and an accused were not comparable. In the Maltese context, relevant consequences were attached to the accused’s refusal in the context of the criminal proceedings, which could have a bearing on an eventual finding of guilt and related sanctions. It followed that the application of different guarantees to individuals according to the role they had in proceedings, and what was at stake for them, was warranted. Secondly, it was open to the applicant to challenge the lawfulness of the decision before the courts of general jurisdiction and it had been a court, as opposed to a non-judicial authority, that decided on her measure. Thus, the Court had no reason to doubt that the domestic court ordering such measure had balanced the interests of both the party subject to it and those of the judicial investigation. The taking of a buccal swab was an act of a very short duration that usually caused no bodily injury or any physical or mental suffering, and thus was of minor importance. The applicant was a witness present on the scene of the murder. Moreover, according to the authorities, her sample had been necessary to determine the accused’s motive for the murder. Murder constituted a serious offence, in respect of which the State had obligations arising under Article   2 vis-à-vis the victims of such crime and their relatives. It was thus both reasonable and necessary to gather as much evidence as possible. The Court could not find that the measure in question was disproportionate. Conclusion : inadmissible (manifestly ill-founded).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes