Ruling highlights limits of criminal investigation powers
In a decision touching on the core balance between criminal investigation and the protection of personal data, the Supreme Court of Cyprus has annulled an order issued by the Limassol District Court for the forced collection of genetic material (DNA) from a suspect while he was in police custody.
The Supreme Court ruled that the lower court failed to exercise the required judicial discretion in light of EU law, as well as the principles of necessity and proportionality, leading to the annulment of the order by the Supreme Court.
Background of the case
The case arose following the applicant’s arrest on 26 April 2025 as a suspect in a series of serious offences, including illegal possession and use of a Class B controlled substance, malicious damage, theft, negligent acts, and traffic-related offences. The following day, a new arrest warrant was issued for money laundering, and the Limassol District Court ordered his detention, which ultimately lasted thirteen days.
During his detention, the Cyprus Institute of Neurology and Genetics informed the police that genetic material found on evidence related to the investigation matched the applicant’s DNA, which was already held by the authorities from a previous case.
Despite this, and following the applicant’s refusal to consent to the taking of a new DNA sample, the police relied on Article 25 of the Police Law of 2004. On 5 May 2025, the Limassol District Court issued an order for the collection of genetic material, referring briefly and exclusively to the contents of a sworn affidavit by a police officer.
Legal challenge before the Supreme Court
A few days later, after the applicant was referred directly for trial before the Limassol Assize Court, he applied to the Supreme Court seeking annulment of the order through a prerogative writ.
The application argued, among other points, that Article 25 of Law 73(I)/2004, as applied, conflicted with EU Directive 2016/680, which governs the protection of personal data in the context of criminal justice. It was further argued that the principle of necessity had been violated, given that the authorities already possessed the applicant’s genetic material.
In the meantime, the Supreme Constitutional Court of Cyprus, in separate cases, had ruled that Article 25 does not violate the Constitution, particularly Article 15. In light of this development, the applicant withdrew the constitutional argument but maintained the claim of incompatibility with EU law.
Failure to assess necessity and proportionality
The Supreme Court recalled that prerogative writs constitute an exceptional jurisdiction, exercised sparingly, and are not intended to review the substantive correctness of lower court decisions but rather the legality of the exercise of jurisdiction.
It nevertheless examined whether the lower court had taken into account the requirements of Directive 2016/680, which permits the collection and processing of biometric and genetic data only when this is strictly necessary, proportionate, and accompanied by adequate safeguards.
Particular emphasis was placed on the fact that Article 25 of Law 73(I)/2004, although granting broad powers for the collection of genetic material from detainees, does not itself define criteria of necessity, the link between the sample and the offence under investigation, or the seriousness of the case. The Court stressed that mere detention is not sufficient and that each request must be assessed individually in accordance with European standards.
The case file showed that the Limassol District Court had recorded no substantive balancing exercise. There was no indication that it considered the necessity of taking a new DNA sample, especially given that the applicant had already been identified through existing genetic material. Instead, it merely referred to the police affidavit, which itself contained no specific elements justifying the need for a new sample.
Order annulled, costs awarded
The Supreme Court also rejected the police’s ex post facto argument that the existing genetic material could only be used for identification purposes and not as evidence in the specific case, noting that this position had not been put before the lower court and was not supported by a clear legal basis or binding case law.
On the basis of these findings, the Court concluded that there had been an insufficient exercise of judicial discretion and a failure to verify the conditions imposed by EU law. It therefore ruled that the contested order had been issued without due legality and annulled it by issuing a prerogative writ of certiorari.
The costs of the proceedings, including the initial application for leave, were awarded in favour of the applicant and against the respondent party.
Also read: Paphos-Limassol motorway crash leaves driver seriously injured
For more videos and updates, check out our YouTube channel
