Is compulsorily taking of blood samples of the defendant constitutional?
According to the Italian constitution (art 13), any restriction of personal liberty is subject to a double guarantee: a law prescribing it ("only in the cases and ways provided for by law") and a judge ordering it ("reasoned act of the judicial authority").
The Italian Constitution provides a protection for personal liberty, an inviolable right, which is one of the supreme values, as an indefectible essential nucleus of the individual, not unlike the contiguous and closely related right to life and physical integrity, with which it contributes to constitute the primary matrix of every other constitutionally protected right of the person.
The taking of blood samples certainly entails a restriction of personal liberty when it is necessary to compulsorily perform it because the person undergoing the expert examination does not spontaneously consent to the taking of the sample: and such a restriction is all the more alarming - and therefore in need of careful evaluation by the legislator in the determination of the "cases and methods" in which it may be ordered by the judge - in that it not only affects the sphere of personal freedom, but goes beyond it because, albeit to a minimum extent, it invades the bodily sphere of the person - although normally without compromising, per se, his physical integrity or health (including psychic health), nor his dignity, since it is a medical practice of ordinary administration (cf. Judgment No. 194 of 1996) - and of that sphere it takes away, for the purposes of obtaining evidence in criminal proceedings, a part which is, yes, almost insignificant, but certainly not nothing.
ITALIAN CONSTITUTIONAL COURT
JUDGMENT NO. 238
- Mr Mauro FERRI, President
- Prof. Luigi MENGONI
- Prof. Enzo CHELI
- Dr Renato GRANATA
- Prof. Giuliano VASSALLI
- Prof. Francesco GUIZZI
- Prof. Cesare MIRABELLI
- Prof. Fernando SANTOSUOSSO
- Mr Massimo VARI
- Dr Cesare RUPERTO
- Dr Riccardo CHIEPPA
- Prof. Gustavo ZAGREBELSKY
- Prof. Valerio ONIDA
- Prof. Carlo MEZZANOTTE
has delivered the following
in the case of the constitutional legitimacy of Article 224, paragraph 2, of the Code of Criminal Procedure, promoted by order issued on 13 December 1995 by the Judge for Preliminary Investigations at the Court of Civitavecchia in the criminal proceedings against Fabio Gregori, entered under number 167 in the register of orders for 1996 and published in the Official Journal of the Republic no. 10, first special series, of 1996.
Having regard to the statement of defence of Gregori Fabio and the statement of intervention of the President of the Council of Ministers;
Hearing at the public hearing on 11 June 1996 of Judge-Rapporteur Renato Granata;
having heard Paola Severino, lawyer, on behalf of Gregori Fabio and Gaetano Zotta, Avvocato dello Stato, on behalf of the President of the Council of Ministers.
1. -- By order of 13 December 1995 the Judge for Preliminary Investigations at the Court of Civitavecchia raised an incidental question of the constitutional legitimacy of Article 224, paragraph 2, of the Code of Criminal Procedure with reference to Articles 3 and 13, paragraph 2, of the Constitution.
The Preliminary Investigations Judge stated that in the course of the criminal proceedings against Gregori Fabio the Public Prosecutor had asked for a forensic medical expert's report to be carried out by way of an accidental evidence in order to ascertain, by taking blood samples from the suspect and from other members of his household, whether the genetic polymorphisms emerging from the samples to be taken were identical to those present and ascertained in the blood material found on a statue of the Madonna.
Having been admitted to the hearing, at the scheduled hearing the suspect expressed his wish not to submit to the taking of blood samples and also stated that this was also the intention of the relatives who had requested the same test; at the same hearing he disputed that the court could compulsorily order the taking of blood samples.
In the same instance, he contested the fact that the judge could compulsorily require the taking of blood samples. The referring judge observed that the evidence, the taking of which is requested even in the absence of the necessary support and willingness of the persons concerned, inevitably entails the use of coercive means imposing the deprivation of personal liberty and the subjecting of the person to invasive tests on his body. On the other hand, the possibility to compulsorily order the requested examinations falls within the powers assigned to the judge by the rules on evidence (Art. 220 et seq. of the Code of Criminal Procedure). However - continues the referring Judge for Preliminary Investigations - if it is true that this Court (with sentence no. 54 of 1986) has already legitimised the coercive blood sample with reference to the rules of the repealed Code of Criminal Procedure, the question can nonetheless be re-proposed in the changed procedural structure of the new Code of Procedure. In fact, art. 224, second paragraph, of the Code of Criminal Procedure allows, in a totally generic manner, the possibility of issuing a coercive measure to ensure the completion of the expert's report because it provides for the right of the judge to give the appropriate measures for the appearance of the persons subjected to the examination of the expert and to adopt all the other measures that are necessary for the execution of the expert's operations, without any concrete specification as to the nature and the possibility of extension of the coercion. On the other hand, the constitutional provision, recognising the inviolability of personal freedom, does not allow any restriction thereof except by reasoned act of the judicial authority and only in the cases and ways provided for by law; and this implies the necessary "typification" of the possibilities of restriction of personal freedom. On the other hand, the new Code of Criminal Procedure has dealt analytically and scrupulously with the issue of the personal freedom of the suspect, providing for a whole series of restrictions on the powers of the judicial police, the public prosecutor and the judge himself, and has graduated the extent of the restrictive measures in relation to the concrete situation, reserving them only for offences of a certain gravity. On the other hand, the recognition by the judge of an indiscriminate power to forcibly subject the suspect or even persons not involved in the accusation to blood samples or other forms of invasive medical examinations contrasts with the overall regulatory framework that the legislator has established on the subject of personal freedom with the new Code of Procedure.
2. -- The President of the Council of Ministers, represented and defended by the Attorney General's Office, has intervened, requesting that the question be declared inadmissible or unfounded, essentially referring to the aforementioned precedent of this Court and pointing out that in any case the measure ordering the coercive examination of blood is directly appealable under Article 111 of the Constitution.
3. -- Gregori Fabio, a suspect in the criminal proceedings pending before the referring judge, has entered an appearance and - adhering to the prospect of the order of referral - has requested, also with a subsequent statement, the declaration of unconstitutionality of the provision censured.
Considered in law
1. -- An incidental question of constitutional legitimacy has been raised - with reference to articles 3 and 13, second paragraph, of the Constitution - of art. It is raised an incidental question of constitutional legitimacy - with reference to Articles 3 and 13, second paragraph, of the Constitution - of Art. 224, paragraph 2, of the Code of Criminal Procedure, in so far as it provides for the possibility for the judge of preliminary investigations to order coercively - during the evidentiary accident for the execution of a haematological expert's report - the taking of blood samples from both the suspect and third parties on the grounds of suspicion of violation both of the principle of inviolability of personal liberty, since the cases and the ways in which it is possible to proceed with such a coercive taking of blood samples, which is also invasive of physical integrity, are not determined with a peremptory character; and of the principle of unequal treatment, on account of the indiscriminate and indistinct nature of the compulsory collection of any suspect and even of persons not involved in the facts.
2. -- The provision censured provides that the judge who has ordered the expert's report may adopt all "other measures" - in addition to the order to appear before the persons subject to the expert's examination - "which are necessary for the performance of the expert's operations". The referring court considers that these measures implicitly include the order to compulsorily take blood samples from the person under examination, and argues that the provision is unconstitutional on the basis of this interpretation, which is confirmed both by the case-law of legitimacy, which has questioned the limits of admissibility of such a compulsory sample when it could compromise the physical integrity or dignity (including the right to privacy) of the person under examination, and by the case-law of this Court, which in judgment no. 54 1986, which had already examined similar provisions of the repealed Code of Criminal Procedure. In that judgment, the Court declared unfounded the question of constitutional legitimacy of Articles 146, 314 and 317 of that Code, with reference to Art. The Court declared unfounded the question of the constitutional legitimacy of Articles 146, 314 and 317 of that Code, with reference to Art. 13, 2nd and 4th Paragraphs, of the Constitution, in the part in which they provided for the faculty of the Investigating Judge to order, without any limitation, the coercive blood sampling, specifying then in the grounds that the Judge, on the contrary, met precise limits, because the specific provisions denounced had to be read in the context of the Constitution and its fundamental principles, so that, on the one hand, a reasoned decision of the judicial authority was necessary and, on the other hand, the court could not order the coercive taking of blood samples if, in view of the circumstances of the case, it endangered life, health or safety or was detrimental to the dignity of the person or invasive of his inner psyche.
3. -- The question is well-founded.
3.1. -- The first check required by the order of referral is that of the compatibility of the preceptive content thus enucleated by art. 224, paragraph 2, of the Code of Criminal Procedure with the requirement expressed by the first parameter evoked (art. 13, para 2, of the Constitution), which subjects any restriction of personal liberty, among which nominally the detention, the inspection and the personal search, to a double guarantee the reservation of law (such coercive measures being possible "only in the cases and ways provided for by law") and the reservation of jurisdiction (requiring the "reasoned act of the judicial authority"); and thus provides a protection that is central to the constitutional design, having as its object an inviolable right, that of personal liberty, which is one of the supreme values, as an indefectible essential nucleus of the individual, not unlike the contiguous and closely related right to life and physical integrity, with which it contributes to constitute the primary matrix of every other constitutionally protected right of the person.
3.2. -- The taking of blood samples certainly entails a restriction of personal liberty when it is necessary to compulsorily perform it because the person undergoing the expert examination does not spontaneously consent to the taking of the sample. And such a restriction is all the more alarming - and therefore in need of careful evaluation by the legislator in the determination of the "cases and methods" in which it may be ordered by the judge - in that it not only affects the sphere of personal freedom, but goes beyond it because, albeit to a minimum extent, it invades the bodily sphere of the person - although normally without compromising, per se, his physical integrity or health (including psychic health), nor his dignity, since it is a medical practice of ordinary administration (cf. Judgment No. 194 of 1996) - and of that sphere it takes away, for the purposes of obtaining evidence in criminal proceedings, a part which is, yes, almost insignificant, but certainly not nothing.
The guarantee of the - absolute - reservation of the law is therefore operative in this case, which implies the need to define the "cases and methods" in which personal freedom can be legitimately compressed and restricted. Nor can this reference to the law result in a further reference by the law itself to the full discretion of the judge who applies it, requiring instead a regulatory provision capable of anchoring the restriction of personal freedom to objectively recognisable criteria.
3.3. -- In the past, this Court, in the aforementioned sentence no. 54 of 1986, established the negative limits (inferable from articles 2 and 32 of the Constitution) of the compulsory collection of blood, considering also satisfied the reserve of the law, as regards both "cases" and "methods".
However, the question must be reconsidered, considering that it is necessary to reach different conclusions, also taking into account the greater force with which the value of personal liberty is affirmed in the new Code of Criminal Procedure, inspired in a particularly accentuated manner by the favor libertatis. Not without considering that the previous intervention of this Court, and the needs of guarantee underlined therein, should have suggested to the Legislator, when drafting the new Code of Criminal Procedure, to fix and define conditions, prerequisites and limits for the adoption of the coercive measure in question, as has been done for other measures of restriction of personal liberty, even if not of a precautionary nature, such as the coercive accompaniment (Art. 133 and 134 of the Code of Criminal Procedure); so that in this changed normative context, while these and other restrictive measures have been positively disciplined, in a more or less detailed way, the same has not happened for the coercive blood sample, referable only to the generic formulation of Art. 224, para 2, of the Code of Criminal Procedure, without any express prevision either of the same measure, or of its presuppositions and limits.
3.4. -- On the other hand, it is not without significance that, in a different (but also recent) context, which is that of the new highway code (arts. It is not without significance, on the other hand, that, in a different (but also recent) context, which is that of the new Highway Code (Art. 186 and 187), the Legislator - specifically operating the balance between the probative need of ascertaining the crime and the constitutional guarantee of personal liberty - has dictated a specific (and sectorial) discipline of the verification (on the person of the driver in an apparent state of alcoholic euphoria or assumption of narcotic substances) of the concentration of alcohol in the alveolar air exhaled and of the taking of samples of biological liquids, (providing in both cases for the possibility of refusing the assessment, but with the imposition of a criminal sanction for such unwillingness of the driver to offer himself and cooperate in the acquisition of evidence); discipline - this one - the constitutional illegitimacy of which was recently excluded by this Court (sentence no. 194 of 1996, cited above) precisely because of the fact that the driver is not willing to offer himself and cooperate in the acquisition of evidence. 194 of 1996, cited) denying, among other things, the alleged vulnerability of Art. 13, para 2, of the Constitution, given that the "detailed regulations" of such ascertainment "does not even allow the hypothesis of the violation of the reserve of law".
On the contrary, with reference to the generic normative case in question, it is found that the reasons relative to the criminal justice, consisting in the necessity of acquiring the evidence of the crime, even though constituting a primary value on which is founded any system inspired by the principle of legality, represent, in reality, only the purpose of the restrictive measure and not also the indication of the "cases" wanted by the constitutional guarantee. In the same way, the consideration that the coercive blood sample cannot be ordered when it harms the dignity of the person or endangers the life or the physical integrity of the same, constitutes nothing more than the reflection of the negative limits deduced from the framing of the specific measure in the general context of the system, but does not realize the positive indication of the "ways", as prescribed by Art. 13, second paragraph, of the Constitution.
3.5. -- More generally, with reference also to any other atypical coercive measure that may in abstract terms be referred to the notion of "measures ... More generally, with reference also to any other atypical coercive measure which may in abstract terms be covered by the concept of 'measures ... necessary for the performance of expert operations', the provision censured - in which there is no specific provision as to the measures which may be adopted by the judicial authority for the performance of expert operations, referring, by a single and undifferentiated phrase, to an indeterminate series of measures, without distinguishing between those that affect and those that do not affect personal liberty and accumulating in an indistinct discipline the one and the other - presents an absolute generality of formulation and total lack of any positive specification of the cases and the ways in which it can only be considered legitimate to proceed with the coercive execution of expert assessments through the adoption, at the discretion of the judge, of measures restricting personal liberty. As already mentioned, there is also no specification of the type of restrictive measures that can be adopted, which accentuates - highlighting the contrast with the parameter mentioned - the absolute lack of positive indications on the "cases" and "methods".
4. -- It is therefore necessary to declare the constitutional unlawfulness of Article 224, paragraph 2 (second sentence) of the Code of Criminal Procedure, in so far as it allows measures restricting personal liberty aimed at the execution of the expert report, and in particular the coercive blood sample, without determining the type of measures that can be carried out and without specifying the cases and the ways in which they can be adopted.
It follows that - until such time as the legislature identifies the types of measures restricting personal liberty which may be ordered by the court for the purpose of permitting (even against the will of the person subjected to the examination) the performance of the expert report considered necessary for the purposes of the proceedings, and specifies the cases in which and the manner in which they may be adopted - no such measure may be ordered.
5. -- Examination of the further complaint raised by the referring court under Article 3 of the Constitution is not affected.
ON THESE GROUNDS
THE CONSTITUTIONAL COURT
The Constitutional Court declares the unconstitutionality of Article 224, paragraph 2, of the Code of Criminal Procedure in so far as it allows the judge, in the context of expert operations, to order measures which in any case affect the personal freedom of the suspect or the accused or third parties, other than those specifically provided for in the "cases" and "methods" laid down by law.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 27 June 1996.
Mauro FERRI, President
Renato GRANATA, Editor
Filed at the Court Registry on 9 July 1996.