FOURTH SECTION
DECISION
Application no. 41079/16
Romina CARUANA
against Malta
The European Court of Human Rights (Fourth Section), sitting on 15 May 2018 as a Chamber composed of:
Ganna Yudkivska, President,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Carlo Ranzoni,
Georges Ravarani,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 15 July 2016,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Romina Caruana, is a Maltese national, who was born in 1977 and lives in Qormi. She was represented before the Court by Dr J. Grech, a lawyer practising in Valletta.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
3. On an unspecified date criminal proceedings before the Court of Magistrates as a court of criminal inquiry (that is, in committal proceedings, hereinafter the COM) were instituted against S.C., the applicant’s husband. He was charged with the wilful homicide of X following a shooting which took place on 19 December 2008 in the applicant’s and her husband’s residence. During the proceedings it was alleged that the applicant had an extramarital relationship with the victim, and that on the day of the murder she had opened the door for the victim with whom she then had sexual relations. While this was going on the applicant’s husband was asleep, but was woken at one point when the victim stepped on a toy which made some noise. Sometime after, the shooting took place. The applicant denied this.
4. On 10 May 2011, pending the above mentioned proceedings, the COM authorised the taking of buccal swabs from the applicant and appointed an expert (M.C.) for this purpose.
5. Subsequently the Attorney General (hereinafter the “AG”) requested the court to authorise the expert to carry out further examinations on the clothing of the victim (in particular in relation to white stains consisting of corporal liquids found on a white top and black trousers) and to compare all female genetic profiles found through such examination, including on material (tissue) and other exhibits, and to establish whether such genetic profiles belonged to the same person.
6. On 12 July 2012 the applicant lodged an application with the COM, requesting it to refer certain matters to the constitutional jurisdictions, inter alia, the issue that the measure of taking intimate samples would constitute a breach of her rights under Article 8 of the Convention and the corresponding articles of the Constitution of Malta.
7. By a decree of 30 May 2013 the COM acceded to the applicant’s request limited to the above-mentioned matter and referred it to the constitutional jurisdictions.
2. Constitutional redress proceedings
8. By a judgment of 30 November 2015 the Civil Court (First Hall), in its constitutional competence, found in favour of the applicant and ruled that the decree of the COM of 10 May 2012 was in breach of the applicant’s Article 8 rights and sent its judgment together with the rest of the case-file to the COM for it to continue hearing the case and decide it according to law.
9. It considered that in the light of both ECHR and domestic case-law there was no doubt that the order to give buccal samples was an interference with her Article 8 rights. However, that interference was not in accordance with the law in so far as Article 635 of the Criminal Code [see relevant domestic law below] protected the applicant from giving forensic samples which could be used against her spouse. According to the court, in the light of the principle ubi lex voluit dixit, it was inconceivable that Article 635 referred solely to oral witness testimony and not also to forensic samples. In its view the legislator’s intention was clearly to protect a spouse from having to give evidence which can be used in criminal proceedings against the other spouse. Expenses were to be borne by the defendants (the Police).
10. The defendants appealed.
11. By a judgment of 29 April 2016, the Constitutional Court upheld the appeal and revoked the first-instance judgment, thus finding no violation of Article 8 of the Convention.
12. It was not in dispute that the order of the COM was an interference with the applicant’s Article 8 rights. The court further considered that the interference was in accordance with the law in so far as Article 397 of the Criminal Code clearly gave the power to the court to make such orders, specifically to order any “... experiment, or any other thing necessary for the fullest investigation of the case”. In the present case the order to take buccal swabs was lawful and within the parameters of the mentioned provision. What was in dispute was whether that provision was applicable in the light of Article 635 of the Criminal Code. In the Constitutional Court’s view Article 635 could not be interpreted as including meanings which were not attributed to it by the legislator. It had to be interpreted in the light of the maxim quod lex voluit lex dixit, meaning that what the legislator intended is expressly stated in law and what is not expressly stated does not fall within the parameters of that same law. Article 635 made no reference to the taking of samples from a person; thus while explicitly forbidding the spouse from giving witness testimony (jixhed) against the other spouse, it did not prohibit the taking of samples. It would be unlawful to give to that provision a meaning which it did not have. Similarly domestic case-law had held that the right to remain silent and not to incriminate oneself could not be extended to things (materjal) which could be taken from the accused compulsorily. Furthermore, Article 355BB made it clear that a person who was not the accused could also be subjected to such measures.
13. As to the proportionality of the measure the Constitutional Court noted that the accused was charged with wilful homicide which carried a sentence of life imprisonment. It was therefore the COM’s duty to take all necessary measures to ensure that the evidence was as complete as possible. The samples requested could establish a link between the applicant and the victim and they were thus evidence having a relevant probative value in the criminal proceedings, in particular in connection with the motive behind the crime, as also noted by the COM. It followed that the interference was not only in accordance with a law which was accessible and foreseeable but also satisfied the requirement of proportionality. The measure had been aimed at collecting evidence to enable the prosecution of a person accused of a serious crime and thus pursued the legitimate aim of the prevention of crime which encompassed the prosecution of crime according to the ECHR’s case‑law. Given the relevance of that evidence which was necessary in the proper interests of justice, the necessity test had also been fulfilled. Indeed, while the compulsory giving of evidence by a spouse against the other spouse fell within the ambit of Article 8, one had to balance the interests of the applicant and those of society as a whole, and in particular those of the proper administration of justice. In the light of the importance of the evidence for the criminal proceedings, the latter’s interests prevailed over those of the applicant.
14. In conclusion such an order did not breach the applicant’s Article 8 rights. The expenses at first-instance were to be divided by the parties equally and those on appeal were to be paid by the applicant.
3. Subsequent events
15. Committal proceedings were continued and on 6 March 2018 the COM requested an update as to the proceedings pending before this Court.
B. Relevant domestic law
16. Article 397 of the Criminal Code, which falls within that part of the Criminal Code dealing with the powers and functions of the Court of Magistrates as a court of criminal inquiry, at the relevant time, in so far as relevant, read as follows:
“(1) The court may order the attendance of any witness and the production of any evidence which it may deem necessary, as well as the issue of any summons or warrant of arrest against any other principal or accomplice whom the court may discover. The court may likewise order any inquest, search, experiment, or any other thing necessary for the fullest investigation of the case.
(2) The court may also, under such safeguards as it may consider necessary for the purpose of decency, examine or order to be examined by experts any part of the body of the accused or of the party on whom or with whom the offence is alleged to have been committed, if the court is of opinion that from such examination a proof might result either against or in favour of the accused.”
In 2014 the words “experiment or any other thing” were replaced by the words “experiment, the taking of any sample and any other measure or thing”.
17. Article 355AZ of the Criminal Code, which falls within that part of the Criminal Code dealing with the powers and duties of the Executive Police, reads as follows:
“Where the appropriate consent to the taking of an intimate sample from a person was refused without a good cause, in any proceedings against the person for an offence, those who have to judge of the facts may draw such inferences from the refusal as appear proper and the refusal may, on the basis of such inferences, be treated as, or as capable of amounting to corroboration of any evidence against the person in relation to which the refusal is material.”
18. Article 355BB of the Criminal Code, which also falls within that part of the Criminal Code dealing with the powers and duties of the Executive Police, prior to amendments in 2014, read as follows:
“Samples from a person other than a person arrested may only be taken with that person’s prior consent in writing:
Provided that for the taking of an intimate sample a Magistrate’s authorisation must also be obtained upon application.”
19. Following amendments in 2014 the proviso read as follows:
“Provided that in the event that the person, other than the person arrested, withholds his consent to the taking of a sample, whether intimate or non-intimate, a Magistrate’s authorisation may also be obtained upon an application and, saving the provisions of article 355AZ, such authorization shall also cover the taking of any proportionate and necessary measures, including the use of force, by the Executive Police to give effect to such authorization.”
20. Article 635 of the Criminal Code reads as follows:
“(1) Notwithstanding the provisions of article 633, [the] spouse, civil union partner or cohabitant of the party charged or accused cannot be admitted to give evidence either in favour of or against such party, except -
(a) in the case of offences committed against the witness, or against his or her ascendants or descendants;
(b) in the case of offences against the provisions of the White Slave Traffic (Suppression) Ordinance, where the spouse, the civil union partner or the cohabitant of the party charged or accused is a person on whom or in respect of whom the offence is committed or is a person on the earnings of whose prostitution the party charged or accused has lived;
(c) at the request of the party charged or accused for the evidence of his spouse, civil union partner or cohabitant, if such party is himself or herself admitted to give evidence on oath according to the provisions of the last preceding article.
(2) The provisions of this article shall also apply where [the] spouse, civil union partner or cohabitant of the party charged or accused is a witness for or against any other person who is tried jointly with such party.”
COMPLAINT
21. The applicant complains under Article 8 of the Convention that the taking of buccal swabs was an interference which was not in accordance with Maltese law. In the applicant’s view there was no legitimate aim behind the interference which was thus not necessary in a democratic society.
22. In particular, the applicant noted that she was neither indicted nor accused nor suspected of any criminal activity that occurred or might occur. She noted that an accused had the right to remain silent. She referred to Article 397 of the Criminal Code which was introduced in 1859 and remained largely unchanged, and to Article 355AZ of the Criminal Code which was introduced in 2002, noting that an accused could effectively refuse to give samples subject to inferences being drawn. Thus, she considered that under Maltese law, she ‑ as a witness ‑ had lesser rights than the accused, including the right to challenge such decrees during the criminal proceedings, since she had no standing in such proceedings. In her view there was no legitimate basis for the interference since she had nothing to do with the criminal activity in question.
23. She further considered that the matter was aggravated by the fact that she was the wife of the accused and thus not a compellable witness according to Article 635 of the Criminal Code. She argued that spousal privilege should apply not only to the witness stand but also to the taking of intimate samples from her body. In her view despite the court’s discretion under Article 397, there was no legal basis for the order in her respect, as a witness and spouse of the accused; thus spousal privilege was to prevail.
24. She considered that since the interference was not prescribed by law, it could not have a legitimate aim. She noted that it could not be said that the aim was the prevention of disorder or crime as the crime had already been committed. Furthermore, the measure was not necessary in a democratic society, considering that the existence of the spousal privilege guaranteed under Article 8 was in itself a recognition that the balance tilted in her favour over that of the general public interest, which could not prevail in this context.
THE LAW
25. The applicant complained that the taking of buccal swabs was an interference which was not in accordance with the law and was not justified under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. General principles
26. The Court has previously held that the taking of cellular material and its retention as well as the determination and retention of DNA profiles extracted from cellular samples constitute an interference with the right to respect for private life within the meaning of Article 8 § 1 of the Convention (see, inter alia, Van der Velden v. the Netherlands, (dec.), no. 29514/05, ECHR 2006‑XV, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 71 to 77, ECHR 2008; and Peruzzo and Martens v. Germany, (dec.), nos. 7841/08 and 57900/12, § 33, 4 June 2013). In particular the respect for private life as protected by Article 8 involves respect for a person’s physical integrity and the taking of a blood and saliva sample constitute a compulsory medical intervention which, even if it is of minor importance, must consequently be considered as an interference with the right to privacy (see Schmidt v. Germany, (dec.), no. 32352/02, 5 January 2006).
27. Such interference will be in breach of Article 8 of the Convention unless it can be justified under its paragraph 2 as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned (see Peruzzo and Martens, (dec.), cited above, § 34).
B. Application to the present case
28. The Court notes that the present complaint does not concern the retention of material but the actual taking of the cellular material by means of a buccal swab. The Court accepts that the taking of a mouth swab in order to obtain cellular material from the applicant amounts to an interference with the right to respect for private life (see Van der Velden, (dec.), cited above; and W. v. the Netherlands, (dec.), no. 20689/08, 20 January 2009).
29. The Court observes that while it is possible that the applicant has not yet been subjected to the swab, the measure has been ordered by a court and is not subject to any further appeal – the Constitutional Court having rejected her claim, the order is now executable. It is also mandatory despite the applicant’s unwillingness. Thus, the Court accepts that the applicant can be considered as a victim of the interference at issue (see, a contrario, Cakicisoy and Others v. Cyprus, (dec.), no. 6523/12, § 51, 23 September 2014 ‑ where the Court found that there was no interference given that the applicants consented voluntarily to give the samples).
30. The Court observes that recourse to such compulsory testing may come about in various contexts, and will not necessarily raise an issue under the Convention (see, for example, Acmanne and Others v. Belgium, Commission decision of 10 December 1984, concerning compulsory tuberculosis testing on children; see also Mandet v. France, no. 30955/12, § 22, 14 January 2016, where the complaint under Article 8 included the compulsory genetic testing of a child; and Peruzzo and Martens (dec.), cited above, dealing with the taking, storing and retaining of DNA records ‑ outside the ambit of criminal proceedings ‑ obtained from persons who had been convicted of criminal offences). Compulsory DNA testing may also come into play in the context of paternity proceedings, where, however, it must be borne in mind that the protection of third persons may preclude their being compelled to make themselves available for medical testing of any kind, including DNA testing (see, for example, Mikulić v. Croatia, no. 53176/99, § 61; ECHR 2002‑I, Pascaud v. France, no. 19535/08, § 62, 16 June 2011; and A.M.M. v. Romania, no. 2151/10, § 61, 14 February 2012).
31. The Court further notes that Article 8 of the Convention does not as such prohibit recourse to a medical procedure in defiance of the will of a suspect in order to obtain from him evidence of his involvement in the commission of a criminal offence (see Jalloh v. Germany [GC], no. 54810/00, § 70, ECHR 2006‑IX).
32. The Court considers that recourse to such medical procedures, particularly when minor, is also not a priori prohibited in order to obtain evidence related to the commission of a crime when the subject of the test is not the offender, but a relevant witness, as in the present case. It thus cannot be considered as inherently unlawful. What is of paramount importance is that the measure is in accordance with the relevant Convention requirements (see paragraph 27 above).
33. According to the Court’s established case-law, the expression “in accordance with the law” requires that the impugned measure should have some basis in domestic law, and also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (ibid., § 53).
34. The Court accepts, as did the Constitutional Court (see paragraph 12 above), that the measure was ordered pursuant to Article 397 of the Criminal Code. It has not been submitted that this provision was not precise or foreseeable; there is therefore no reason for the Court to delve further into the matter.
35. However, the applicant complained that this provision no longer applied to her given that she was not a compellable witness in the light of the spousal privilege granted by Article 635 of the Criminal Code. The Court observes that the long-standing testimonial privilege whereby the spouse of the defendant cannot be compelled to give evidence remains enshrined in various jurisdictions (see Van der Heijden v. the Netherlands [GC], no. 42857/05, § 31-32, 3 April 2012) but States are entitled to set boundaries to the scope of testimonial privilege (ibid., § 69). Nevertheless, the ratio behind the exception of spousal testimonial privilege remains unaltered. The Court has previously noted that “such witnesses are relieved of the moral dilemma of having to choose between giving truthful evidence and thereby, possibly, jeopardising their relationship with the suspect or giving unreliable evidence, or even perjuring themselves, in order to protect that relationship” (ibid., § 65). In the Court’s view this ratio can only apply to oral evidence (testimony), as opposed to real evidence, which exists independently of a person’s will.
36. Similarly, the Court has consistently held that the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use, in criminal proceedings, of material which may be obtained from the accused through the use of compulsory powers but which has 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 (see Jalloh, cited above, § 102). The Court observes that the Constitutional Court’s finding (see paragraph 12 above) to the effect that Article 635 of the Criminal Code (concerning spousal privilege) did not include the giving of material evidence and their subsequent conclusion that Article 635 could not render Article 397 inapplicable was the result of similar considerations.
37. In view of the above considerations, the Court is satisfied that the impugned measure was “in accordance with the law” within the meaning of Article 8 of the Convention.
38. The Court further considers that the interference pursued a “legitimate aim” – namely the protection of society by inter alia “the prevention of crime”, that concept encompassing the securing of evidence for the purpose of detecting as well as prosecuting crime (see Van der Heijden, cited above, § 54). The Court reiterates that public interest in the prosecution of crime involves, of necessity, putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Indeed the duty of High Contracting Parties to deter or punish crime extends to other Convention provisions involving the active protection of individuals’ rights against harm caused by others (ibid., § 62).
39. As to whether the measure was necessary in a democratic society the Court has to determine whether a fair balance has been struck between the fundamental right of the individual to respect for his or her private life and the legitimate interest of a democratic State in prosecuting perpetrators of crimes and criminal offences. It notes that the national authorities enjoy a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim, i.e. whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised by the contested measure (see Schmidt, (dec.), cited above).
40. In so far as the applicant complained that she had lesser rights than an accused person (see paragraph 22 in fine), the Court notes as follows:
(i) in so far as the applicant refers to her impossibility (as a witness) to refuse to submit to the test, unlike an accused in criminal proceedings, the Court notes that the situations of a witness and an accused are not comparable. In this connection the Court observes that, in the Maltese context, relevant consequences (such as inferences and related implications) are attached to the accused’s refusal in the context of the criminal proceedings to which he or she is a party, which could have a bearing on an eventual finding of guilt and related sanctions, including severe deprivations of liberty. It follows that the application of different guarantees to individuals according to the role they have in proceedings, and what is at stake for them, is warranted;
(ii) in so far as the applicant refers to her inability to challenge the measure during the criminal proceedings (to which she was not a party), the Court notes that it was open to her to challenge the lawfulness of the decision before the courts of general jurisdiction, namely the Civil Court (First Hall) in its ordinary competence, and request that the measure be declared null. She could also bring any Convention complaint before the constitutional jurisdictions, a course of action she in fact availed herself of. More importantly, the Court notes that apart from the just-mentioned ex post facto reviews, it was a court, as opposed to a non-judicial authority, that decided on her measure. The applicant admitted that the court had discretion in applying measures under Article 397 of the Criminal Code and did not complain that the law lacked any guidance as to the way in which the discretion, with which the courts had been vested by law, should be exercised. Thus, in the circumstances of the present case, the Court has no reason to doubt that the court ordering such measure had balanced the interests of both the party subject to the measure and those of the judicial investigation.
41. The Court notes that the taking of a buccal swab is an act of a very short duration, it usually causes no bodily injury or any physical or mental suffering, and thus is of minor importance. The applicant did not submit that the sample had been taken or will be taken in a manner contrary to the relevant procedure (see, a contrario, Yuriy Volkov v. Ukraine, no. 45872/06, § 87, 19 December 2013) or in particular by using excessive use of force. In the present case, the applicant was a witness present on the scene of the murder. Moreover, according to the authorities, her sample was necessary to determine the accused’s motive for the murder. Murder constitutes a serious offence, in respect of which the State has obligations arising under Article 2 of the Convention 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. Taking all these considerations into account as well as the important public interest in the prosecution of serious crime (see Van der Heijden, cited above, § 74) and the fact that Contracting States enjoy a certain margin of appreciation in this matter, the Court cannot find that the measure in question was disproportionate.
42. It follows that the application must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 31 May 2018.
Andrea TamiettiGanna Yudkivska
Deputy RegistrarPresident
Full & Egal Universal Law Academy