At the heart of the case under review was a preliminary issue of a specialised criminal court in Bulgaria. The court considered an application by a Bulgarian police authority to authorise compulsory collection of biological and genetic data on a person suspected of involvement in an organised criminal group, who refused to undergo the collection of such data.

The CJEU then addressed several issues related to the limitation of the national regulation on the collection of biological and genetic data by Directive 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data (“the Directive”). That is, whether and when the authorities can enforce the collection of such data and when they do not have the right to do so.

In particular, if:

• national legislation can allow a court to order compulsory collection of an accused person’s biological and genetic data without the court being empowered to assess if the accused person has committed an offence (or if there are substantial grounds for believing that he/she has)?
• national law can allow systematic collection of genetic and biological data for each accused person?

On the first question, the CJEU held that, in accordance with the right to effective judicial protection, it is sufficient if national law guarantees a means of judicial review of the compulsion to take the data in question. Therefore, the court deciding on the authorisation of data collection does not need to have it proven that there are compelling reasons in the sense of Article 6(a) of the Directive. In other words, national legislation may allow a court to order the compulsory collection of biological and genetic data, but it must also allow the subject to effectively defend himself against such compulsion in court.

In the second question, the CJEU followed the previous opinion and ruled that, on the contrary, national legislation must not allow systematic collection of genetic and biological data on any suspect of an intentional crime without further ado. In order for the competent authorities to collect such data, one of the conditions in Article 6 of the Directive must be met, i.e., for example, that there are substantial grounds for believing that the accused person actually committed the offence in question. Any collection of such data must be assessed on an individual basis and cannot be interpreted as a general means of collecting data on every suspect.

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Author: Veronika Odrobinová, Jan Nešpor