Judgment No. 35624 of 2023: Consent to the Collection of Biological Samples and its Legal Validity

Judgment No. 35624 of January 20, 2023, by the Court of Cassation represents an important ruling on the collection of biological samples and the necessity of the interested party's consent. This decision provides essential clarifications on the validity of collection acts even in the absence of a consent record, offering an innovative interpretation of current regulations.

The Legal Context of Biological Sample Collection

Pursuant to Articles 224-bis and 359-bis of the Code of Criminal Procedure, the collection of biological samples can also occur in the absence of the interested party's consent, albeit under specific circumstances. The Court held that, in the specific case, the results of the compulsory collection of hair and saliva could be considered usable in summary judgment proceedings. This represents a significant turning point for jurisprudence and judicial practice in Italy.

Analysis of the Judgment's Headnote

Collection of biological samples - Record attesting the interested party's consent - Absence - Genetic inadmissibility of the act - Exclusion - Reasons - Case law. The absence of a record attesting consent to the collection of biological samples does not lead to "pathological" inadmissibility of the collection act, given that the provisions of Articles 224-bis and 359-bis of the Code of Criminal Procedure allow for compulsory collection. (Case law in which the Court held that the results of compulsory hair and saliva collection activities were usable in summary judgment proceedings, despite the absence of a record attesting the consent of the interested person).

The headnote of the judgment highlights how the mere absence of a consent record cannot be interpreted as an invalidity of the collection act. This approach allows for a balance between the right to defense and the needs of justice, ensuring that relevant evidence can be used even in situations where consent is not formalized. It is crucial to emphasize that this interpretation does not mean a derogation from fundamental rights, but rather a prudent application of the rule within the context of criminal investigations.

Conclusions

Judgment No. 35624 of 2023 offers us a clear and pragmatic view on the issues concerning the collection of biological samples. It highlights how the Italian legal system can adapt to the requirements of justice, even in complex situations. Lawyers and legal professionals should consider these developments, as they can have a significant impact on defense strategies and the interpretation of criminal procedure rules. The issue of consent, in fact, remains crucial and will continue to be the subject of debate and further analysis in future jurisprudence.