THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32352/02 
by Detlef-Harro SCHMIDT 
against Germany

The European Court of Human Rights (Third Section), sitting on 5 January 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr L. Caflisch
 Mr C. Bîrsan
 Mrs M. Tsatsa-Nikolovska
 Mrs R. Jaeger
 Mr E. Myjer, 
 Mr David Thór Björgvinsson, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 16 August 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Detlef-Harro Schmidt, is a German national who was born in 1949 and lives in Berlin. He was represented before the Court by Mr E. Buchholz, a lawyer practising in Berlin.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1993, four German right wing extremists set fire to a house in Solingen in which five members of a Turkish family died. The perpetrators were later tried before the Düsseldorf Regional Court. In May 1995, while the above proceedings were pending, the Düsseldorf Regional Court received an anonymous letter, containing a copied and forged notarial document. The document denounced as the perpetrator of the Solingen assault a Turkish citizen living in Berlin with whom the applicant had a legal dispute. The applicant continues to deny that he has written and sent the letter.

In order to determine the sender of the letter, the Düsseldorf Regional Crime Office (Landeskriminalamt) investigated traces of the perpetrator’s saliva on the stamp on the letter. On 8 December 1995, the Tiergarten District Court in Berlin ordered, in accordance with Section 81a of the German Code of Criminal Procedure (Strafprozeßordnung), the taking and examination of a sample of the applicant’s blood and saliva and an investigation on whether it derived from the same person as the saliva on the stamp. A blood sample was taken by a medical doctor on 18 December 1995. Subsequently, the applicant was convicted for casting false suspicion on a third person, forgery and defamation and sentenced to two and a half years’ imprisonment by the Tiergarten District Court on 24 April 1996. Several motions filed by the applicant for the reopening of the proceedings were to no avail.

On 23 October 2001, the Berlin Regional Court dismissed the applicant’s appeal against the Tiergarten District Court’s order to take the blood and saliva sample. The court reasoned that the sample had been suitable and necessary for the determination of the authorship of the above letter. Even though there had been additional evidence available such as the applicant’s typewriter and a confession which the applicant had made during a police interrogation, the measure had not been disproportionate. As the applicant did not uphold his confession and sought to denounce it as flawed during a later stage in the proceedings, the Tiergarten District Court found that it had been legitimate to gather all available evidence. Moreover, given that the letter in question referred to the commission of the murder of five members of a Turkish family which attracted nationwide public attention, the impact of the applicant’s offence was equally of high importance. Hence the particular circumstances of the offence also justified the measure in question.

On 7 March 2002, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It found that the order to take the blood and saliva sample had been proportionate, particularly in view of the behaviour of the applicant during the preliminary investigation.

B.  Relevant domestic law

According to Section 81a § 1 of the Code of Criminal Procedure, the taking of a blood sample or similar physical interventions can be ordered to determine facts which are relevant in a certain criminal case, provided that it is taken for examination by a medical doctor and that the taking of the sample is being done lege artis and not to the detriment of the applicant’s health. Section 81a § 2 of the Code of Criminal Procedure requires the taking of a blood sample to be ordered by a court. Moreover, Section 81a § 3 of the Code of Criminal Procedure provides for various guarantees against arbitrary or improper use of blood samples. Such samples may only be used in the particular criminal proceedings or any other criminal proceedings which are already pending. Furthermore, the sample is to be destroyed as soon as it ceases to constitute relevant evidence.

COMPLAINTS

The applicant complained under Article 3 of the Convention about the order and taking of the blood and saliva sample. He particularly states that the measure was disproportionate in view of other available evidence. The applicant further complained under Article 6 of the Convention that he had not been heard before the taking of the sample had been ordered.

THE LAW

1. The applicant complained about the order and taking of the blood and saliva sample under Article 3 of the Convention. The Court finds the measure not to attain the minimum level of severity required in order to be qualified as inhuman and degrading treatment.

The Court however recalls that it has jurisdiction to review in the light of the entirety of the Convention’s requirements circumstances complained of by an applicant. In the performance of its duties, it is free to attribute to the facts of the case a characterisation in law different from that given by the applicant (see inter alia the cases of Rehbock v. Slovenia, judgment of 28 November 2000, Reports of Judgements and Decisions 2000-XII § 63, and Camenzind v. Switzerland, judgment of 16 December 1997, Reports 1997-VIII, § 50). Therefore, the Court considers that the case falls to be examined primarily under Article 8 of the Convention which provides:

“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.”

The Court notes that the respect for private life as protected by Article 8 involves respect for a person’s physical integrity. The taking of a blood and saliva sample from the applicant constitutes a compulsory medical intervention which, even if it is of minor importance, must consequently be considered as an interference with his right to privacy  
(see X v. the Netherlands, decision of 4 December 1979, no. 8239/78, 16 D/R 184; X v. Austria, decision of 13 December 1979, no. 8278/78, 18 D/R 154).

Such an interference gives rise to a breach of Article 8 unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to attain them.

The Court notes that the interference was based on Section 81a § 1 of the Code of Criminal Procedure, which is precise and accessible to all. In the present case, the taking had been ordered by a competent court as required by the above provision. Moreover, the sample had been taken by a medical doctor. The applicant did not submit that the taking of the sample had not been lege artis or had been in any way detrimental to his health. Therefore, the contested measure was in accordance with the applicable law.

The Court further considers that the taking of a blood and saliva sample was ordered in order to determine the applicant’s authorship for a criminal offence. This offence, which consisted in casting false suspicion on a third person, forgery and defamation, was of a severe nature in the light of the particular circumstances of the case and was connected with the investigation of a fatal attack on a Turkish family which caused nationwide public attention. Therefore, the order served a legitimate aim, namely the interests of national security and public safety.

While having regard to the circumstances of the case, the Court has to determine whether a fair balance has been struck between the fundamental right of the individual to respect for his private life and the legitimate interest of a democratic State in ensuring national security and 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.

The Court notes that the taking of a blood sample in general, when effected lege artis by a medical doctor, is only of a very short duration, causes only minor bodily injury and cannot be said to cause intense physical or mental suffering. Moreover, Section 81a of the Code of Criminal Procedure provides for various guarantees against the arbitrary or improper taking and use of blood samples. The applicant did not submit that the sample had been taken in a manner contrary to the Code of Criminal Procedure, in particular that excessive use of force was applied or that the sample had not been taken by a medical doctor.

The Court further recognises that the taking of blood samples is a generally accepted and applied measure in the Codes of Criminal Procedure of many Member States of the Council of Europe, e.g., to determine the blood alcohol level of traffic participants  
(see X v. the Netherlands, cited above).

In the present case, the applicant’s blood and saliva samples were necessary to determine the applicant’s authorship of a letter which amounted to a criminal offence and possibly to establish his guilt for the offence. Even though there appeared to be additional evidence, the German courts have reasoned that, in view of the applicant’s behaviour during the preliminary investigation -in particular the withdrawal of his confession-, it was necessary to gather as much evidence as possible. The domestic courts have further pointed out that the forging of the letter was an act of particular gravity, i.e. the accusation of a third person to have killed five people in a right-wing extremist attack and, therefore, justified the physical intervention of taking a blood sample.

Taking all these considerations into account as well as 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.

It follows that this complaint must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complained under Article 6 about not having been heard before the taking and examination of the blood sample had been ordered by the Tiergarten District Court. He invoked Article 6 § 1 of the Convention which as far as relevant provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court notes that the measure in question had been taken during the preliminary proceedings in order to gather evidence. No formal criminal charge had been brought against the applicant at the time the sample was ordered. If the sample had shown a different result, it would have discharged the applicant. As a consequence, no criminal charge would have been brought against him. In any event, Article 6 does not compel a court to hear a suspect before ordering the taking of a blood sample.

The Court further finds that the order to take the blood sample from the applicant did not violate his right not to incriminate himself as protected under Article 6 § 1. The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. It does not, however, extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsion but which has an existence independent of the will of the suspect, such as blood samples (see Saunders v. the United Kingdom, judgment of 17 December 1996, Reports 1996-VI, § 69).

Accordingly, the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. ZupanČiČ 
 Registrar President

SCHMIDT v. GERMANY DECISION


SCHMIDT v. GERMANY DECISION