Taking of biological samples for expertise under the legislation of Ukraine and its conformity with EU standards

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Taking of biological samples for expertise under the legislation of Ukraine and its conformity with EU standards

Viktoriia V. Rohalska Viktoriia V. Rohalska Department of Criminal Procedure Dnipropetrovsk State University of Internal Affairs Dnipro, Ukraine Oksana M. Bronevytska Oksana M. Bronevytska Department of Criminal Law Disciplines Lviv State University of Internal Affairs Lviv, Ukraine

Halyna D. Boreiko Halyna D. Boreiko Lviv Regional Prosecutor's Office Lviv, Ukraine Iryna S. Shapovalova Iryna S. Shapovalova Pavlograd District Court of Dnipropetrovsk Region Pavlograd, Ukraine

Iryna R. Serkevych Iryna R. Serkevych Department of Criminal Law Disciplines Lviv State University of Internal Affairs Lviv, Ukraine

Abstract

Taking of biological samples for expertise under the legislation of Ukraine and its conformity with EU standards

The analysis of investigative and judicial practice shows that some lawyers regard the refusal of a person to provide voluntarily biological samples for examination as an execution of his/her right not to testify against him/herself.

Analysis of the provisions of separate Judgements of the European Court on Human Rights allows us to conclude that the physical integrity of a person is covered by the concept of “private life” protected by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and concerns the most intimate aspects of private life, and compulsory medical intervention, even insignificant, constitutes an interference with this right.

Therefore, the criminal procedural characteristic of obtaining of biological samples for expertise is given in the article.

The authors analyzed and answered the questions: which particular samples should be attributed to biological ones, and whether it is possible to refuse to voluntarily granting of biological samples for examination in accordance to the realization of the right not to testify against him/herself.

The possibility of obtaining of biological samples for examination from a person who is not a party to criminal proceedings or has not acquired procedural status has been considered.

The article as well deals with the legality of obtaining of samples for examination before submitting information into the Unified Register of Pre-trial Investigations. private life biological expertise criminal

The algorithm of actions of obtaining of biological samples for examination, including the compulsory order, is proposed.

The following general scientific research methods were used: the dialectical method of legal phenomena, with the help of which the concept and the legal nature of biological samples for examination were studied; the comparative method - in the process of comparing the norms of the Criminal Procedural Code of Ukraine (CPC) with the norms of the European Court of Human Rights (ECHR) and decisions of the ECHR, etc.

Keywords: investigatory action, obtaining of samples, procedural order, criminal proceedings, Ukrainian legislation.

Анотація

Відбір біологічних зразків для експертизи відповідно до законодавства України та його відповідність стандартам ЄС

Вікторія Вікторівна Рогальська Кафедра кримінального процесу Дніпропетровський державний університет внутрішніх справ Дніпро, Україна

Оксана Михайлівна Броневицька Кафедра кримінально-правових дисциплін Львівський державний університет внутрішніх справ Львів, Україна

Галина Дмитрівна Борейко Львівська обласна прокуратура Львів, Україна

Ірина Сергіївна Шаповалова Павлоградський міськрайонний суд Дніпропетровської області Павлоград, Україна

Ірина Ростиславівна Серкевич Кафедра кримінально-правових дисциплін Львівський державний університет внутрішніх справ Львів, Україна

Аналіз слідчої та судової практики показує, що деякі адвокати розцінюють відмову особи надати добровільно біологічні зразки для експертизи як виконання її права не свідчити проти себе. Аналіз положень окремих рішень Європейського суду з прав людини дозволяє зробити висновок, що фізична недоторканність особи охоплена поняттям «приватне життя», що охороняється статтею 8 Конвенції про захист прав людини та основоположними Свободи та стосуються найбільш інтимних аспектів приватного життя, а примусове медичне втручання, навіть незначне, є втручанням у це право.

Отже, у статті наведено кримінально-процесуальну характеристику отримання біологічних зразків для експертизи. Автори проаналізували та відповіли на питання: які саме зразки слід віднести до біологічних, і чи можна відмовитися від добровільного надання біологічних зразків на експертизу відповідно до реалізації права не свідчити проти себе. Розглянуто можливість отримання біологічних зразків для експертизи від особи, яка не є учасником кримінального провадження або не набула процесуального статусу. У статті також йдеться про законність отримання зразків для експертизи до подання інформації до Єдиного реєстру досудових розслідувань.

Запропоновано алгоритм дій щодо отримання біологічних зразків для експертизи, включаючи примусове замовлення. Були використані такі загальнонаукові методи дослідження: діалектичний метод правових явищ, за допомогою якого вивчалося поняття та правова природа біологічних зразків для експертизи; порівняльний метод - у процесі порівняння норм Кримінально-процесуального кодексу України (КПК) з нормами Європейського суду з прав людини (ЄСПЛ) та рішень ЄСПЛ тощо

Ключові слова: слідчі дії, отримання зразків, процесуальне розпорядження, кримінальне провадження, законодавство України

Introduction

An expertise is one of legal means of collecting, verification and evaluation of evidence during the proving process in the preliminary investigation stage. An expert's report is a procedural source of evidence and the actual data contained therein is relevant for particular criminal proceedings is considered to be evidence [1]. The evidence contained in the expert's report is evaluated as admissible if obtained according to the rules foreseen by the CPC [2]. That is, the evidence obtained as a result of expertise may be recognized inadmissible by the court if the procedure of obtaining of samples for examination was violated [3] (execution of procedural actions requiring prior court warrant without such a warrant or in case of violation of substantial terms of the warrant (s.1 p. 2 Art. 87 of the CPC)), or if samples for the expertise are obtained with significant violation of human rights and freedoms (torture, cruel, inhuman or disregarding treatment or punishment - s.2 p. 2 art. 87 of the CPC) [2].

The procedural rules for obtaining of samples for the expertise depend on what concrete samples should be obtained [4]. After analyzing the provisions of Article 245 of the CPC, we can conclude that the legislator divides all samples for examination into: samples from belongings, samples from documents, biological samples from a person. According to p. 2 and p. 3 Art. 245 of the CPC obtaining of biological samples from a person voluntarily should be carried out on the basis of a decision of a prosecutor, and obtaining of samples from belongings and documents, and biological samples in a compulsory order - on the basis of the warrant issued by an investigating judge [2]. The other requirements and limits on the obtaining of samples are not foreseen in the legislation of Ukraine.

In most European countries the police can require a deoxyribonucleic acid (DNA) sample if they've arrested a person for a criminal offence that carries a possible jail term, or if they intend to charge a person with one of those offences [5]. If a person is a suspect but they don't have enough evidence to arrest him/her or charge, they can ask to give a sample voluntarily, and if a person refuses, they can only get a sample if they go to a judge and get a court order - called a “compulsion order” [6]. In some countries certain elements must be established before an order can be issued. An application for an order (warrant) must be accompanied by a sworn statement showing that the police have reasonable grounds to believe: 1) that one of the specific offences has been committed, 2) that a bodily substance has been found at the crime scene, on the body or clothing of the victim, 3) that the person against whom the order (warrant) is to be executed was a party to the offence, and that a DNA sample from that person is needed to determine whether or not it matches the bodily substance found by the police [7].

1. Materials and methods

The theoretical basis of the article is composed of scientific works on criminal procedure. The normative legal basis of this work is: The Criminal Procedure Code of Ukraine (CPC), the European Convention on Human Rights and Fundamental Freedoms (ECHR), the practice of the ECHR. The reliability and validity of this research is also provided by empirical material, which include: analyses of judicial practice of the Supreme Court of Ukraine and other courts of Ukraine; court decisions placed in the Unified State Register of Court Decisions (USRS); results of studying of 193 case files based on the results of consideration of claims, applications and complaints submitted to investigative judges of the court of first instance and summarized data obtained during the survey of 240 judges and 80 assistant judges in Dnipropetrovsk, Donetsk, Zakarpattia, Zaporizhia, Ivano-Frankivsk, Kyiv, Kirovohrad, Luhansk, Lviv, Mykolaiv, Odesa, Poltava, Sumy, Ternopil, Kharkiv, Kherson, Khmelnytsky and Cherkasy regions during 2017-2019 [8].

When preparing the article, the following general scientific research methods were used: the dialectical method of legal phenomena, with the help of which the concept and the legal nature of biological samples for examination were studied; the comparative method - in the process of comparing the norms of the CPC with the norms of the ECHR and decisions of the ECHR; logical-legal method - in the analysis and interpretation of legal norms that regulate the grounds and procedural order of selection of biological samples for examination; sociological method - in the study of legal practice, criminal proceedings and questioning of practical employees, as well as other methods. At the same time, all scientific research methods were applied in correlation, which contributed to the comprehensiveness, completeness and objectivity of this research.

The analysis of the investigative materials of criminal proceedings and interviewing of the law enforcement, who conducted the obtaining of samples for the expertise, made it possible to conclude that the most unresolved issues during the application of Art. 245 of the CPC are: 1) vagueness of the current legislation in distinguishing which particular samples of a person should be attributed as biological; 2) correlation of the refusal to provide voluntarily biological samples for conducting an examination with the right not to testify against oneself; 3) the ambiguity of the practice of taking biological samples for examination from a person who is not a party to criminal proceedings or has not acquired a procedural status; 4) the lack of clear legislative rules regarding the possibility of obtaining of samples for examination before submitting the information into the Unified Register of Pre-trial Investigations (hereinafter referred to as the URPI); 5) the absence of a clearly regulated procedure for obtaining of biological samples for examination in the CPC of Ukraine [2].

2. Results and discussion

Characterization of a biological sample from the standpoint of legislation. The vagueness of the current legislation in distinguishing which particular samples of a person should be attributed as biological also affects the procedural order of their obtaining, as far as separate investigators obtain such samples as fingerprints, samples of voice, samples of handwriting without consent of the prosecutor or a judicial order (warrant) because they consider such samples to be not biological. In other cases, investigators request to the prosecutor or investigative judge to take an order (warrant) for obtaining of biological samples. Human biological samples are defined as constituent parts of a human body, or human biological material, including organs and parts of organs, cells and tissues, and body fluids [9].

Different legal acts issued in Ukraine use different terms for designation of the category “biological samples”. In particular, the Rules for Conducting Various Types of Forensic Examinations, approved by the Order of the Ministry of Health No. 6 [10], contain a number of relevant provisions. Thus, in section 1.11.2 of the Rules for Conducting Forensic Medical Examinations (Research) such terminology as “... blood samples, excrements and other biomaterials...” is used. The term “samples of biomaterials” is used in s ection 1.5 of the Rules. This document does not contain a definition of what it is considered to be biological materials, but from its contents it follows that they include liquid blood, gall, urine, saliva, muscles, parts of the internal organs, bones, tampons and strokes with the contents of the vagina, oral cavity, etc. In section 1.9 of the Rules the term “objects of biological origin” is used, among which bits of organs and tissues of a person are indicated. As we see, in these documents the term “blood samples” coincides with the term “samples of biomaterials”. In turn, the latter also contains parts of the organs and tissues of a person, and here it coincides with the term “objects of biological origin”. Therefore, it can be summarized that biological samples in medicine include specimen of liquids and tissues from the human body.

The variety of types of biological (clinical) samples is sufficiently described in methodological recommendations “The Order of Taking, Transporting and Storing the material for Research by a Polymerase Chain Reaction Method”, approved by the Order of the Ministry of Health No. 662 [11], in particular, blood (plasma); materials from the urogenital tract of women; materials from the urogenital tract of men, including sperm; urine; spinal cord fluid; mucus fluid; allocation of the conjunction; material from the human respiratory tract (swabs from the nasal cavity, oropharynx, sputum, etc.); saliva; biopsy and autopsy material, etc. In accordance with the provisions of the Instruction on the Procedure for Detecting Signs of Alcohol, Drugs or Other Intoxication or Staying Under the Influence of Medicine that Reduce the Attention and Speed of Reaction in the Drivers of Vehicles, approved by the Order of the Ministry of Internal Affairs of Ukraine and the Ministry of Health of Ukraine No. 1452/735 [12], samples of the biological environment are selected for the laboratory study to determine the narcotic substance or psychotropic substance in a person (Section 12. The subject of study of the biological environment may be saliva, urine and serum from the surface of the lips, skin of the face and hands. Section 13. Blood may be used for the study of the biological environment if it is not possible to take samples of the biological environments specified in paragraph 12).

According to Art. 3 of the Law of Ukraine “On the United State Demographic Registry and Documents Confirming the Citizenship of Ukraine, Identification of a Person or its Special Status” [13], biometric data is personal data collected on the basis of fixing its characteristics that have sufficient stability and significantly differ from similar parameters of other persons (biometric data, parameters - digital person's signature, digital face image of a person, digital fingerprints). From the contents of p. 2 Art. 26 (“Creation of Information Resources by the Police”) of the Law of Ukraine “On the National Police” [14] we can see that biometric data includes fingerprints and DNA samples, the collection and accumulation of which the police perform through accomplishing the banks of data. Additionally, fingerprints and DNA samples can be sent as objects (samples) for examination. Thus, the difference in terminology, used in legal acts, some contradictions among them do not allow fully to understand the meaning of the term “biological samples”. Therefore, it should be noted that, until it is clearly set out at the legislative level, the problem of correct interpretation of the provisions of Article 245 of the Criminal Procedural Code will remain unresolved.

In our opinion, until the relevant amendments to the legislation are made, the biological samples of a person are all the samples related to the person's vital functions as a biological being: samples of fingerprints, handwriting, speech and voice of a person, samples of dental imprints, prints of any surface of the human body (lips, elbows, feet, etc.), smell traces of a person, as well as all samples of biological origin in their classical sense (saliva, blood, sperm, sweat, hair, nails, etc.) [3], and their obtaining must be carried out according to p. 3. Art. 245 of the CPC. Analysis of some Judgements of the ECHR, in particular: “PG and JH against the United Kingdom” [15] and “Saunders v. the United Kingdom” [16] allowed to reach the conclusion that biological samples of a person are all samples related to the person's livelihoods. In the Judgement “PG and JH v. The United Kingdom” samples of voice are considered as something like blood samples, hair or other physic al samples. And in the Judgement “Saunders v. the United Kingdom” [16] the ECHR decides that samples of blood, hair or other tissues, as well as materials that are produced in the process of the vital functions of the body, such as, for example, breathe, urine, voice samples belong to biological material.

The above conclusion is confirmed by the Summary of the Higher Specialized Court of Ukraine on Civil and Criminal Cases on June 3, 2016, “On the judicial practice of investigative judges dealing with inves tigative actions” [17], where it is noted that “there have been cases of errors in judicial practice in application of the provisions of the CPC. For example, for the examination of the recording and sound, the investigator submitted to the investigating judge a request for the obtaining of the voice sample of the suspect M., who refused to speak loud during procedural actions with his participation with the use of audio fixation. On March 12, 2014, the investigating judge of the Dniprovsky District Court denied in a request, because the investigator did not provide sufficient proofs for believing that the voice is a biological product of human life. We cannot agree with the above court order, since the Art. 245 of the CPC uses the general concept of “sample s for expertise” and two derivative concepts from “samples from belongings and documents” and “biological samples”. Therefore, the affiliation of the voice to the biological samples does not belong to those circumstances that must be proved in the court. In addition, Art. 245 of the CPC foresees a single procedure for deciding the requests for the compulsory obtaining of samples from belongings and documents and biological samples, while the procedure for the obtaining of such samples is regulated by Art. 241 of the CPC [18-20].

According to this classification it is not clear to what category samples for a dactyloscopy (fingerprint) examination should be taken and what procedural order should be implemented for their obtaining. Dactyloscopic examination is a kind of trassological examination whose main task is to identify the person through his/her fingerprints of the hands (feet) left on the crime scene. Biological samples for examination are blood, urine, hair, sperm, etc. Samples from belongings and documents include the traces left on them, or these same belongings and documents, identified in Art. 98 and art. 99 of the Criminal Procedural Code of Ukraine. Having analyzed the foregoing, we should conclude that samples for the dactyloscopic examination cannot be attributed to one or another group. The ambiguous understanding of samples for a fingerprint examination leads to the fact that, for example, in acts of taking of dactyloscopic prints for a fingerprint examination, such prints are sometimes referred to as objects or documents. This is due to the fact that they are formed as a result of pressing a sheet of paper to the previously treated surfaces of the fingers. In this way, they immediately appear on the paper after being pressed, separated from a person, stored and used like evidence without person's consent as documents or material evidence.

Therefore, one part of the lawyers (namely 26 (36%) of the 72 questioned investigators, prosecutors, judges and defence lawyers working in the city of Kyiv and Kyiv region) did not consider them to be biological samples, while the other (35 of the respondents (49%) - that biological samples are obtained only for conducting examinations requiring special knowledge in the field of biological sciences, which do not include dactyloscopy. Those, who support these options, consider that obtaining of dactyloscopic prints is simply the access to belongings and documents of a person.

But there are no fingerprints of a person on a paper until the dactyloscopy is done. This approach is unacceptable, as far as treating a person or parts of his/her body as a thing, object, or document always humiliates the honour and dignity of a person.

Thus, fingerprinting is a process of taking fingerprints, and dactyloscopy is a science that studies papillary patterns of phalanges of fingers in order to distinguish a person. Proceeding from this, the biological components in the fingerprints are sufficient, and due to them with special paints, capable to fix colourless cavernous secretions of papillary lines, the combination of which is stable, restorative and unique for everyone, the prints are always biological samples of a person. In fact, they are special signs of a person for the detection of which the investigator is authorized to carry out examination (Part 1 of Article 241 of the CPC of Ukraine).

Therefore, fingerprinting should be carried out in accordance with the rules of conducting this investigative (search) action. If a person refuses to provide voluntarily his/her fingerprints, the investigating judge shall decide on their compulsory obtaining after the consideration of the request of a party to criminal proceedings. In this case, the requests, orders and records should refer to the forced (compulsory) obtaining of biological samples - fingerprints, and not to temporal access to them as belongings or documents, since they cannot be considered as things, but biological samples.

Voluntarily and compulsory obtaining of biological samples. The analysis of investigative and judicial practice shows that some lawyers regard the refusal of a person to provide voluntarily biological samples for examination as an execution of his/her right not to testify against him/herself, as provided for in Art. 18 of the CPC. A systematic analysis of the provisions of the Criminal Procedural Code and separate Judgements of the ECHR [21] allows us to conclude that the physical integrity of a person is covered by the concept of “private life” protected by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) [22] and concerns the most intimate aspects of private life, and compulsory medical intervention, even insignificant, constitutes an interference with this right (Decision “X and Y v. the Netherlands” [23]), but such interference is usually justified in accordance with Clause 2 of Art. 8 of the Convention as urgency to prevent a crime (“Tirado Ortiz and Losano Martin v. Spain” [24]).