CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 octobre 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }     Communicated on 22 October 2014   THIRD SECTION Application no. 75229/10 Dragan PETROVIĆ against Serbia lodged on 6 December 2010 STATEMENT OF FACTS 1.     The applicant, Mr Dragan Petrović, is a Serbian national, who was born in 1985 and lives in Subotica. He is represented before the Court by Mr V. Juhas Đurić, a lawyer practising in the same town. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     As regards the search of the applicant’s home 3.     On 29 July 2008 the investigating judge of the Subotica District Court ordered that the applicant’s house be searched in connection to an ongoing murder investigation. The search order was issued at the request of unidentified officers of the Subotica Police Department who maintained that a search would “probably” result in a seizure of evidence relevant to the criminal investigation. The investigating judge accepted this reasoning and specified that the search should focus on “objects taken” following the murder. Specifically, on a “black leather jacket” as well as on “shoes and other objects” which could be connected to the crime in question. 4.     On 30 July 2008 the police searched the applicant’s home and seized two handguns together with some ammunition. The police issued a certificate to this effect, which document was not dated but contained the signature of one of the officers involved. The applicant’s lawyer also signed the document, but the applicant personally refused to do so. On the same occasion, the police also prepared the minutes on how the search and seizure had been carried out. In this document, which was dated and signed by one witness, the officers involved, and the applicant’s lawyer, but again not the applicant personally, it was noted that the applicant had denied knowing anything about the handguns found in his home and had further objected that the search order itself had been vague. 2.     As regards the taking of the applicant’s DNA sample 5.     On 29 July 2008, in connection with the same murder investigation, the investigating judge of the Subotica District Court also ordered that a sample of the applicant’s saliva be taken for the purposes of a DNA analysis. The judge authorised the police to take this sample, or a sample of the applicant’s blood in its stead, by force should the applicant resist, with the assistance of medical professionals. In this order’s reasoning it was stated that a DNA test was required in order to compare the DNA data found at the scene of the crime with the applicant’s own DNA profile. In these circumstances and in the presence of his lawyer the applicant agreed to give a sample of his saliva to the officers. It would appear that no minutes on how the order was carried out were ever produced by the police. 3.     As regards the proceeding before the Constitutional Court 6.     On 4 July 2008 the applicant lodged an appeal with the Constitutional Court, alleging that he had suffered a violation of the right to respect for his home and a breach of his private life, both guaranteed under Article 8 of the Convention. In particular, the applicant argued that: (a) the search had been ordered on the basis of a request made by a number of unidentified police officers; (b) the search order itself, as well as the order to take his DNA sample, had been too vague and lacked any proper reasoning; and (c) both orders had been carried out in an arbitrary fashion and in breach of the Code of Criminal Procedure. 7.     On 1 December 2010 the Constitutional Court rejected the applicant’s appeal on its merits, stating that the investigating judge and the police had acted in accordance with the law. The probability that relevant evidence could be uncovered justified the search and the taking of the DNA sample from the applicant. Further, the reasoning offered by the investigating judge, in both respects, had been adequate and the search order had been sufficiently precise. The court, lastly, noted that the applicant had given his DNA sample of his own free will. B.     Relevant domestic law, case-law and commentary 1.     The Constitution of the Republic of Serbia (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06) 8.     Article 170 provides that a “constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed”. 2.     The Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 70/01, amendments published in OG FRY no. 68/02 and in OG RS nos. 58/04, 85/05, 115/05 and 49/07) 9.     Article 77 § 1 provides, inter alia , that the search of a suspect’s home may be carried out if it is “probable” that this measure will result in the uncovering of “traces of the criminal offence” in question or in the seizure of evidence “relevant to the criminal investigation”. No search, however, may be ordered unless there is already a “reasonable suspicion” to the effect that the suspect had committed the crime in question. Any other interpretation of this provision would effectively mean that the competent authorities “could search every place and everyone” at any point in time (see Komentar Zakonika o krivičnom postupku , Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, Justinijan, Belgrade, 2005, p. 156). 10.     Article 78 provides, inter alia , that a search may only be ordered by a reasoned decision issued by a court of law. The suspect shall be entitled to the presence of his counsel. 11.     Article 79 § 3 provides, inter alia , that a search must be carried out in the presence of two witnesses. A failure to secure the attendance of both shall render the search unlawful (see the ruling of the Supreme Court of Serbia Kž. 1849/03 of 29 December 2003). Article 79 § 8 further provides that the minutes describing the search must be signed by all persons concerned therewith. 12.     Article 131 §§ 2 and 3 provides, inter alia , that a court of law may order that a blood sample be taken from any given person, or indeed that “other medical procedures” may be undertaken, if this is deemed necessary in order to establish “the facts relevant to the criminal investigation”. Such procedures may be carried out forcibly, where necessary, providing there is no associated risk for the health of the person in question. COMPLAINTS 13.     The applicant complains that the above-described search had been carried out in breach of the right to respect for his “home” and/or his “private life” as secured under Article 8 of the Convention. 14.     The applicant further complains that the taking of his DNA sample had also violated the right to respect for his “private life” within the meaning of Article 8 of the Convention.   QUESTION TO THE PARTIES Has there been a violation of the applicant’s right to respect for his private life and/or his home, regarding the search of his place of residence and/or the taking of a DNA sample by the respondent State’s authorities, contrary to Article 8 of the Convention (see mutatis mutandis , Smirnov v. Russia , no. 71362/01, §§ 34-49, 7 June 2007; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95, 96, 101-104, ECHR 2008)?