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

Abstract

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 criminalprocedural 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. 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.