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The terms of taking samples of biological material from an accused person for the purpose of genetic examination SK 28/15

‘The necessity of taking a cheek swab occurs when such evidence is a prerequisite for determining or identifying a perpetrator and for holding him/her criminally liable or for protecting an innocent person from being wrongly held criminally liable. This is the proper way of interpreting Article 74(2)(3) of the Criminal Procedure Code,’ stated the Constitutional Tribunal.

On 11 October 2016 at 9.00 the Constitutional Tribunal considered the constitutional complaint filed by M.H. with regard to the terms of taking samples of biological material from an accused person for the purpose of genetic examination.

The Constitutional Tribunal adjudicated that Article 74(2)(3) of the Act of 6 June 1997 – the Criminal Procedure Code is consistent with Article 41(1), Article 47 and Article 51(2) in conjunction with Article 31(3) of the Constitution.

Moreover, the Constitutional Tribunal decided to discontinue the review proceedings as to the remainder.

The ruling was unanimous.

The constitutional issue amounted to providing an answer to the question whether the requirement to subject an accused person to taking a cheek swab by a police officer, imposed on the accused in Article 74(2)(3) of the Criminal Procedure Code – if this is necessary and there is no risk that this might endanger the health of the accused person or other persons – constitutes a proportionate restriction of: personal inviolability (Art. 41(1) of the Constitution); the right to the protection of private life (Art. 47 of the Constitution); and the right to informational self-determination (Art. 51(2) of the Constitution).

The Constitutional Tribunal stated that the action of taking a cheek swab constitutes interference with personal inviolability, which is intrinsically related, inter alia, to the inviolability of the physical integrity of the individual.

Due to the amount and nature of information included in a sample of biological material, inter alia, in the form of the genetic code of a person, which contains vital data e.g. about the person’s state of health, the obtaining of biological material also constitutes an interference with the privacy of the individual. Moreover, the Tribunal stated that – since the scope of the right to informational self-determination, protected on the basis of Article 51(2) of the Constitution, comprises, inter alia, the right to autonomously decide what information to disclose about oneself to others and one’s discretion to determine the accessibility of information about oneself to others – the obligation to provide the samples of biological material, which include vital and very personal information, including the genetic code of the person, constitutes a violation of the right to informational self-determination.

The Tribunal stated that not only personal inviolability but also the right to the protection of private life and informational self-determination do not have the absolute character and may be subject to restrictions, in compliance with the rules set out in Article 31(3) of the Constitution, as well as Article 41(1), second sentence, and Article 51(2) of the Constitution.

In the opinion of the Constitutional Tribunal, Article 74(2)(3) of the Criminal Procedure Code indicates both the way of restricting the rights and freedoms of the individual (subjecting him/her to the taking of a cheek swab) as well as the prerequisites for the restriction (the positive prerequisite i.e. the necessity to undertake such action, as well as the negative prerequisite i.e. concern that the said action would endanger the health of the accused person or other persons). The linguistic, systemic and functional interpretations of Article 74(2)(3) of the Criminal Procedure Code lead to the conclusion that The necessity of taking a cheek swab occurs when such evidence is a prerequisite for determining or identifying a perpetrator and for holding him/her criminally liable or for protecting an innocent person from being wrongly held criminally liable. This is the proper way of interpreting Article 74(2)(3) of the Criminal Procedure Code.

In the view of the Constitutional Tribunal, the role of Article 74(2)(3) of the Criminal Procedure Code is to fulfil one of the basic objectives of criminal proceedings, namely determining the perpetrator of an offence and holding him/her criminally liable, as well as excluding the said liability with regard to an innocent person, and thus the protection of security or public order, within the meaning of Article 31(3) of the Constitution.

Also, the said provision indirectly serves the protection of the rights and freedoms of other persons, in particular the aggrieved parties.

In the view of the Tribunal, the regulation expressed in Article 74(2)(3) of the Criminal Procedure Code meets the criterion of usefulness derived from Article 31(3) of the Constitution. The taking of biological material followed by an analysis of DNA is a worldwide-known method of providing evidence in criminal proceedings which has very strong evidentiary effect, for the outcome of an analysis of DNA makes it possible to determine, with great probability, whether a sample of given biological material does not come from a particular person or whether two samples have the same source.

In the view of the Tribunal, the regulation expressed in Article 74(2)(3) of the Criminal Procedure Code also meets the requirement of necessity. Due to the evidentiary effect of an analysis of DNA, in particular as an identification method, the taking of a cheek swab – in certain circumstances – may prove to be the only way of linking a given perpetrator with the scene of an offence, and thus holding the perpetrator criminally liable and achieving the objectives of criminal proceedings, arising from Article 2 of the Criminal Procedure Code.

In the view of the Tribunal, the effects of Article 74(2)(3) of the Criminal Procedure Code remain adequately proportionate to burdens imposed by that provision on a citizen. The way of obtaining a sample of biological material which consists in taking a cheek swab interferes, to a minimum extent, with the personal inviolability of an accused person. The said action is taken by a police officer trained within that scope, and in particularly justified instances – by a competent employee of a healthcare centre or a research or specialised institution conducting genetic examination.

At the same time, Article 74(2)(3) of the Criminal Procedure Code formulates the negative prerequisite for the above action, which is, inter alia, concern that the said action would endanger the health of an accused person, which constitutes an adequate safeguard against a disproportionate interference with the personal integrity of the individual.

A data set containing information on the outcome of an analysis of DNA – including samples in the form of cheek swabs, collected for the analysis – is subject to protection arising from provisions on the protection of personal data, whereas information concerning the genetic code of a person, obtained, collected, verified and processed by the police may comprise only information about the non-coding part of DNA.

The hearing was presided over by Judge Leon Kieres, and the Judge Rapporteur was Judge Sławomira Wronkowska-Jaśkiewicz.