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

The judgment No. 35624 of January 20, 2023, by the Court of Cassation represents an important ruling regarding the collection of biological samples and the necessity of the subject'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 the existing regulations.

The Legal Context of Biological Sample Collection

According to articles 224-bis and 359-bis of the Code of Criminal Procedure, the collection of biological samples can take place even in the absence of the subject's consent, albeit under certain circumstances. The Court found that, in this specific case, the results of the coercive collection of hair and saliva could be considered usable in the context of a summary judgment. This represents a significant turning point for case law and judicial practice in Italy.

Analysis of the Judgment's Headnote

Collection of biological samples - Record attesting to the subject's consent - Absence - Genetic unusability of the act - Exclusion - Reasons - Specific case. The lack of a record attesting to the consent for the collection of biological samples does not lead to "pathological" unusability of the collection act, given that the provisions of articles 224-bis and 359-bis of the Code of Criminal Procedure allow for coercive collection. (Specific case in which the Court deemed the results of the coercive collection of hair and saliva usable in the context of a summary judgment, despite the absence of the record attesting to 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 essential to emphasize that this interpretation does not imply a derogation of fundamental rights, but rather a cautious application of the rule in the context of criminal investigations.

Conclusions

Judgment No. 35624 of 2023 provides 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 take these developments into account, as they may 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 a subject of debate and analysis in future case law.