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Program
I. Motivation.
II. Methodology.
III. DNA technology legal framework
International (non EU) legal framework.
EU legal framework
IV. Fundamental rights protection in EU Multilevel
System
V. Actual trends… Conclusions?
I. Motivation
IALS Seminar
19 March 2015
I. Motivation
DNA as a biometric data represent a challenge for security
systems in the actual global world in order to fight against
globalized crime
As we know, new technologies, help us to identify individuals
using the called biometric technologies ((Sarrión Esteve &
Benlloch Domènech, 2014), using for example:
fingerprint/palm print identification
iris identification
face recognition
DNA technology.
I. Motivation
This research is focused on DNA technology (particularly on the
forensic use) in criminal investigation (DNA fingerprinting/DNA
evidence/DNA typing)
What can we say about DNA technology?
It is based on the characteristics of all living organisms,
including humans, who are determined by information
contained within DNA. We can use this information in order to
identify individuals in the criminal investigation.
The molecules of DNA (deoxyribonucleic acid) contain
information that is of great importance for their special
features since except for identical twins, each individual
has a different, unique, and unrepeatable DNA.
I. Motivation
The exclusivity of DNA facilitates its use for both
investigation of paternity, and identifying persons in criminal
investigation, obtaining DNA or genetic profile, which is
composed of DNA or genetic data resulting essential.
The called “DNA fingerprint” (Jeffreys, Wilson, Thein, 1985)
is actually:
• the new “language of truth” ( Hindman &Prainsack, 2010,
1)
• the new “gold standard” (Colle & Lynch, 2010, 123)
We can use for criminal investigation the called non-coding
DNA, defined as the one that providing a characteristic of
each individual, it is an anonymous code distinguishing
feature and it can be useful for identifying the identity but it
does not provide information on to physical or phenotypic
traits of the individual (the called coding DNA ). But we can
also use the provision of the sex characteristic of the
subject (Amelogenin, as for example in CODIS and the
Interpol Standard (ISSOL)
Problem: The progress of Science can convert non-
coding DNA in coding DNA (Gómez Sánchez, 2007)
I. Motivation
I. Motivation
Anyway, in a context of globalized crime, DNA technology
is very useful. In fact, some EU Member States (Austria,
Belgium, France, Germany, Luxembourg, the Netherlands,
and Spain), aware of it, developed a legal framework (out of
the EU legal system) in order to regulate the exchange of
DNA data between them: the Prüm Convention
Signed on 27 May 2005 in the city of Prüm.
Other EU Members States joined it due to it success,
and finally it was assumed in the EU Legal Framework
[Prüm Decision]
I. Motivation
The goal of the use of DNA technology in criminal
investigation is to obtain a valid and effective evidence for a
penal proceeding [Cabezudo Bajo, 2011] (usually national
proceeding, with the exception of an international criminal
proceeding at international courts).
•The DNA evidence must be obtained with respect to
fundamental rights and legal guarantees (evidence
validity)
•The DNA evidence must be obtained with the best
technical conditions (effectiveness)
I. Motivation
Really, the problems in relation to this goal arise at three
levels: the technical conditions (effectiveness), the respect
of fundamental rights and legal guarantees in the realization
of the DNA evidence (validity), and the interpretation of the
results (probability)
Nevertheless, my research is focused on the validity of
the DNA evidence, and particularly regarding
fundamental rights protection; within the aim of see if
DNA criminal databases are effective against serious
national and transnational crime (Cabezudo Bajo, 2013)
The violation of fundamental rights: nullity
(prohibited evidence).
II. METHODOLOGY
IALS Seminar
19 March 2015
II. Methodology
We want to identify the requirements for the respect of
fundamental rights in the use of DNA technology (in order to
obtain a valid DNA evidence in a criminal national proceeding) in
the context of the European multilevel system in which we live
(the compliance with applicable fundamental and human rights
standards).
And to do it, we use: 1) the multilevel constitutionalism
perspective (Bilancia, De Marco, 2004) with attention to different
legal systems with effect to right’s legislation and interpretation;
and 2) the three stages structure of the called “forensic use of
DNA technology” with the perspective that we should obtain a
DNA evidence with the maximum respect of fundamental rights in
the three stages(Cabezudo Bajo, 2011, 2012).
II. Methodology
Multilevel constitutionalism perspective approach
The different levels or legal systems are becoming
progressively more interconnected, and therefore we need to
explain the relation and identify the correct criteria to integrate
them from the perspective of fundamental rights protection
(Gómez Sánchez, 2011), particularly in the EU complex
system.
There are at least three levels to take into account:
International level (International instruments on human
rights, and particularly European Convention Human Rights
standard)
EU Level (EU Fundamental Rights Charter standard / and
Fundamental Rights as General Principles of EU Law in the
ECJ case law)
National Level ([Constitutional] fundamental rights
standards, and in some conuntries maybe regional rights)
II. Methodology
The three stages structure of the called “forensic use of
DNA technology”
The called forensic use of DNA technology can be structured in
three different stages:
1) the sample collection,
2) the extraction of DNA profile, and
3) The treatment of the DNA data in a criminal database
And we should obtain a DNA evidence with the maximum respect
of fundamental rights in the three stages) (Cabezudo Bajo, 2011,
2012)
III. DNA technology legal
framework
IALS Seminar
19 March 2015
The use of DNA technology is based on different legal
instruments:
International legal framework
EU legal framework
National legal frameworks.
According to the aim of this paper, we are interested in the
international and particularly the EU legal framework. But it is
important to note that international and EU legal instruments are
usually implemented by national bodies applying national legal
frameworks.
International (non EU) Legal Framework
Bilateral Agreements between States (for example the
recent Agreement between UK and Australia)
Interpol DNA Gateway
Interpol member states can upload DNA profiles, and
others can use the central database (It is a central DNA
database or DNA central record)
Interpol Standard Set of Loci (ISSOL) (24 loci)
The EU Legal Framework (Assumption of Prüm Convention
regime)
Council Decision 2008/615/JHA of 23 June 2008 on the
stepping up of cross-border cooperation, particularly in
combating terrorism and cross-border crime (known as Prüm
decision)
Council Decision 2008/616/JHA of 23 June 2008 on the
implementation of Decision 2008/615/JHA on the stepping up
of cross-border cooperation, particularly in combating terrorism
and cross-border crime.
Council Decision 2010/482/EU of 26 July 2010 on the
conclusion of the Agreement between the European Union and
Iceland and Norway on the application of certain provisions of
Council Decision 2008/615/JHA and Council Decision
2008/616/JHA
The EU Legal Framework
DNA Prüm system.
Use of DNA national databases connected with national contact points on so
called hit/non hit basis (the result is yes/no, and if it is yes: request of the
personal information). It is very different from the Interpol Gateway. Under
Prüm mechanism, EU Member states retain their DNA profiles in their own
DNA databases.
(Recommended) use of the European standard set of loci (EES) (7)
established in 2001 (EU Council Resolution 9192/01), extended to 12 loci in
2009 (EU Council Resolution 2009/C 296/01). But they can use also the
Interpol Standard (ISSOL).
According to the Annex of the Council Decision 2008/616/JHA, chapter 2,
Member States must use DNA profiles containing at least “six full designated
loci”
The EU Council Resolutions are not binding… they call upon European
countries to use the EES (a lot of EU Member States use CODIS (USA loci
CODIS)
The EU Legal Framework
Loci Standards
Locus
European Standard (ESS)
Interpol Standard (ISSOL)
USA (CODIS core-loci)
D1S1656
X
X
D2S1338
X
TPOX
X
X
D2S441
X
X
D3S1358
X
X
X
FIBRA (FGA)
X
X
X
D5S818
X
X
CSF1P0
X
X
ACTBP2 (SE33)
X
D7S820
X
X
D8S1179
X
X
X
D10S1248
X
X
TH01
X
X
X
VWA
X
X
X
D12S391
X
X
D13S317
X
X
Penta E
X
D16S539
X
X
D18S51
X
X
X
D19S433
X
D21S11
X
X
X
Penta D
X
D22S1045
X
X
Amelogenin
X
X
Source: ENFSI, 2014, and own elaboration. The loci in yellow are the first European Standard Set (EES)
The EU Legal Framework
According to Prüm Decisions on 26 August 2011 EU Member States had to
comply with the automated searching provisions in order to be willing to
exchange DNA data between them.
However, the reality is very different. Today [data of 20 January 2015],
only 22 of the 28 EU Member States have operational their DNA
databases in order to share DNA data. And UK, after the opt-out decision
is not operating under Prüm Decions Regime.
Regarding the rest (21) of the operational EU Member States, it is
important to note that not every of them are prepared to share DNA data
between them.
[Presidency, ‘Implementation of the provisions on information exchange of the "Prüm Decisions" - overview of documents and
procedures - overview of declarations - state of play of implementation of automated data exchange (9377/EU XXV.GP)'”,
20.01.2014. Available at: http://www.parlament.gv.at/PAKT/EU/XXV/EU/00/93/EU_09377/imfname_10434179.pdf, accessed
on 18 March 2015]
The UK opt-out decision
One of the actual trends related to the EU Legal Framework on DNA
technology is the eventual consequences of the recent UK opt-out
decision regarding the measures in the field of police co-operation and
judicial co-operation in criminal matters adopted prior to Lisbon Treaty,
including the Prüm regulation, according to the article 10(4) of Protocol 36
to the Lisbon Treaty, after the ends of the transitional period on 1
December 2014 .
Report "The UK block opt-out in police and judicial cooperation in
criminal matters: recent developments",
www.parliament.uk/briefing-papers/SN06930.pdf [Accessed on 29
December 2014])
The EU Legal Framework
The EU Legal Framework
The UK opt-out decision
The involved consequences of the UK opting out decision of EU
Criminal law was well pointed out two years ago, and particularly
regarding Prüm Decision. It was noted that "UK would be relieved of any
duty to provide automated access to its databases (...) At the same time,
UK law enforcement authorities would not be able to have direct and
automatic access to other Member States' databases" (Hinajeros &
Spencer &Peers, 2012: 18).
One of the problems is that the opt out is on block. Certainly the UK
notified the Council on 24 July 2013 that it would exercise this block opt-
out option.
After that the UK negotiated opting back into 35 measures. However,
Prüm Decision is not within them. Nevertheless, to opting back, the EU
Member States must agree unanimously on it, and at the General Affairs
Council on 24 June 2014, some EU Member States expressed
reservations. Therefore, on 6 November 2014 the UK Government published the Draft
Criminal Justice and Data Protection (Protocol 36) Regulations 2014 which aim to transpose
into UK law further measures to fully implement 11of the 35 measures.
The UK opt-out decision
In order to solve the eventual problems of the Prüm decision opt out
(and to replace it), the UK seems to compromise to share DNA data with
EU Member States, but with a limited access to the UK'S DNA database
("Police to share DNA database with Europe's force", Financial Times, 12
November 2014, www.ft.com/cms/s/0/5213f5ae-6a82-11e4-8fca-
00144feabdc0.html#axzz3NHceO94Z [Accessed on 29 December 2014]
However, the actual situation is very unclear. In fact, the information
available at the document cited on the Implementation of the provisions on
information exchange of the "Prüm Decisions”, is that UK is “Currently
evaluating a range of options for the changes necessary to deliver the
significant business and technical changes required to meet the
obligations arising from the Prüm Decisions. Strategic planning and
mapping of the way forward is continuing”
(Presidency, ‘Implementation of the provisions on information exchange of
the "Prüm Decisions" … cit)
The EU Legal Framework
The UK opt-out decision
Moreover, and according to the European Council Decision
2014/836/EU the UK is to undertake a full business and implementation
case in order to assess the merits and practicals benefits of rejoining, and
the necessary steps for it to do so (the results of which are to be published
by 30 September 2015). And if the result is positive, the UK will decide,
by 31 December 2015 whether to notify the Council, within the following
four weeks, of its wish to participate in the Prüm Decision.
The EU Legal Framework
IV. Fundamental rights
protection in EU Multilevel
System
IALS Seminar
19 March 2015
IV. Fundamental rights protection in EU
Multilevel System
Multilevel constitutionalism perspective
There are at least three levels to take into account:
International level (International instruments on human
rights, and particularly European Convention Human
Rights standard)
EU Level (EU Fundamental Rights Charter standard /
and Fundamental Rights as General Principles of EU
Law in the ECJ case law)
National Level ([Constitutional] fundamental rights
standards)
The “forensic use of DNA technology” must guarantee the
respect of fundamental rights in the three stages in witch we
can structure it [Cabezudo Bajo, 2011, 2012]: 1) the sample
collection, 2) the extraction of DNA profile, and 3) the
treatment of DNA profile in a criminal database.
IV. Fundamental rights protection in EU
Multivel System
From the perspective of an EU exchange of DNA data (Prüm
Decisions) regarding the fundamental rights protection, it is
important to note that:
A)The 1) the sample collection, and 2) the extraction of DNA
profile, and 3) the national treatment of DNA data (the
inclusion of the profile and its treatment in the national
database) is made under the national law of the Member
State in witch the DNA sample is collected, extracted and
treated in its national database
Each EU Member State retains the responsibility of the
DNA profiles to process them according to the national
law (Cabezudo Bajo, 2008)
IV. Fundamental rights protection in EU
Multivel System
B) Regarding the exchange of DNA Data (always using the
national contact point) the requesting Member State is
allowed to conduct automated searches by comparing DNA
profiles in other Member States (article 3 (1) Prüm Decision)
and in case of a “hit” (mach), the requesting Member State
shall receive in an automated way the reference data which
a match has been found (article 3(2) Prüm Decision).
Searches may be conducted only for the investigation of
criminal offences and in individual cases and in
compliance with the requesting Member State`s
national law” (article 3(1) Prüm Decision).
IV. Fundamental rights protection in EU
Multivel System
C) EU Member States can also (by mutual consent) and always
via their national contact points compare the DNA profiles of
their unidentified DNA profiles with all DNA profiles from other
national DNA EU Member States database, and if the result is a
hit (mach) the second one “shall, without delay, supply the other
Member State`s national contact point with the reference data
with witch a match has been found” (article 4 Prüm Decision)
Searches may be conducted only for the
investigation of criminal offences
IV. Fundamental rights protection in EU Multivel System
It is important to note that in both procedures (articles 3
and 4 Prüm Decision) the requesting State only obtains a
“reference data” (a reference number, without personal
information).
D) In order to obtain personal data, the supply of this
information “shall be governed by the national law including
the legal assistance rules, of the requested Member State
(article 5 Prüm Decision).
This “can be carried out according to mutual assistance
procedures, bilateral agreements on information
exchange, Council Framework Decision 2006/960/JHA
[on simplifying the exchange of information and
intelligence between law enforcement authorities of the
Member States of the European Union] and other legal
instruments” (Soleto Muñoz & Fiodorova, 2013, 152)
IV. Fundamental rights protection in EU Multivel System
E) According to article 25(1) of Prüm Decision, regarding the
processing of personal data “which are or have been supplied”
each Member State shall guarantee a level of protection of
personal data in its national law at least equal to the
Council of Europe Convention for the Protection of
Individuals with regard to Automatic Processing of
Personal Data of 28 January 1981 and its Additional
Protocol of 8 November 2001, and taking account of
Recommendation No R (87) 15 of 17 September 1987 of the
Committee of Ministers of the Council of Europe to the
Member States regulating the use of personal data in the
police sector.
The supply of data may not take place until these provisions
have been implemented in the national law. The Council shall
unanimously decide whether this condition has been meet. This
condition shall not apply to States where the supply of personal data
under Prüm Treaty has already started (article 25(2) and (3) Prüm
Decision).
IV. Fundamental rights protection in EU Multivel System
E) The Data Protection Directive (95/46/EC) explicitly excluded
from its scope of application data processing “in the course
of an activity which falls outside the scope of Community law,
such as those provided for by Titles V and VI of the Treaty on
European Union and in any case to processing operations
concerning public security, defense, State security (including
the economic well-being of the State when the processing
operation relates to State security matters) and the activities
of the State in areas of criminal law” (art. 3(2)).
And the future data protection package??
IV. Fundamental rights protection in EU Multivel System
The future data protection package includes a General
Regulation and a Directive on the protection of individuals
with regard to the processing of personal data by
competent authorities for the purposes of prevention,
investigation, detection or prosecution of criminal offences
or the execution of criminal penalties, and the free
movement of such data.
However, the data protection package initially leaves
unaffected Prüm regime as was pointed out by the European
Data Protection Supervisor (Opinion of the European Data
Protection Supervisor on the data protection reform package, 7
March 2012, 443, page 68 ). But the Amendment 6 of EU Parliament
(14 March 2014) introduced it. (EP legislative resolution of 12 March 2014
COM(2012)0010 – C7-0024/2012 – 2012/0010(COD)) Today (4 December
2014 is in discussion within the Council (http://eur-
lex.europa.eu/procedure/EN/201285)
Fundamental rights involved and different standards in
the EU multilevel system.
Nevertheless, one problem is that data protection is not the only
fundamental right which can be affected by DNA technolgy,
because we may identify fundamental rights affected in the
three stages above referred:
rights to private life
bodily integrity
home inviolability
the right to defence
the protection of personal data
…
IV. Fundamental rights protection in EU Multivel System
Charter of Fundamental Rights of EU
(article 52)
Level of protection (art. 53) ?
Fundamental Rights as General
Principles of EU Law (ECJ case law)
European Convention of
Human Rights
Common constitutonal traditions
in EU Member States.
IV. Fundamental rights protection in EU Multivel System
And we may also identify the different protection
standards involved in the EU Multilevel system…
International human rights level
National level
EU level
Higher level of protection criteria ? (Sarrión Esteve,
2014)
Fundamental rights level protection, article 53 EU
Fundamental Rights Charter.
“
Nothing in this Charter shall be interpreted as restricting or adversely
affecting human rights and fundamental freedoms as recognized, in
their respective fields of application, by Union law and international law
and by international agreements to which the Union, the Community or
all the Member States are party, including the European Convention
for the Protection of Human Rights and Fundamental Freedoms, and
by the Member States’ constitutions.”
V. Actual trends…
Conclusions?
IALS Lunchtime Seminar
27 November 2014
The “forensic use of DNA technology” must guarantee the
respect of fundamental rights in the three stages in witch we can
structure it [Cabezudo Bajo, 2011, 2012]:
the sample collection
the extraction of DNA profile
the treatment of DNA profile in a criminal database
(including the exchange of DNA data)
V. Actual trends… Conclusions?
Research Focus: Exchange of DNA data between EU
Member States: Third Stage (Treatment of DNA data in criminal
database)
But…Problem?: Fundamental rights protection in the
three stages is a requirement to the validity of the DNA
evidence in a national criminal proceeding (sample
collection, extraction of DNA profile in the EU Member
State which obtained the sample, made the extraction and
the treatment in the national database)
EU Legal Framework. EU regulation of the exchange of DNA
data in the third stage, but…
Fundamental Rights affected
Privacy rights, particularly data Protection.
But…Problem? (see above)
V. Actual trends… Conclusions?
F.R. Standard protection/levels involved. Connection between
standards?
EHRC (Convention). Strasbourg Court case law (Marper,
2008).
EU. EU Charter, General Principles, ECJ case law.
National/Constitutional from EU Member States involved.
National Supreme or Constitutional courts case law.
V. Actual trends… Conclusions?
F.R. Standard protection/levels involved. Connection between
standards?
EHRC (Convention). Strasbourg Court case law (Marper,
2008).
EU. EU Charter, General Principles, ECJ case law.
National/Constitutional from EU Member States involved.
National Supreme or Constitutional courts case law.
V. Actual trends… Conclusions?
References
BILANCIA, P., DE MARCO, E., (coord.) (2004): La tutela multilivello dei diritti. Punti di crisi,
problema apperti, momento di stabilizzacione, Giufrè, Milán. CABEZUDO BAJO, María José
(2008):"La protección de datos personales tratados en el marco de la cooperación policial y judicial
en materia penal", in De la Oliva Santos et al (eds), La justicia y la Carta de Derechos
Fundamentales de la UE, 327-342.
CABEZUDO BAJO, María José (2011): "Valoración del sistema de protección del dato de ADN en
el ámbito europeo", Revista General de Derecho Europeo, 25, 2011.
CABEZUDO BAJO, María José (2012): "La regulación del “uso forense de la tecnología del ADN”
en España y en la UE: Identificación de cinco nuevas cuestiones controvertidas", Revista General
de Derecho Procesal, 26, 2012.
CABEZUDO BAJO, María José (ed) (2013): Las bases de datos policiales de ADN ¿son una
herramienta realmente eficaz en la lucha contra la criminalidad grave nacional y transfronteriza,
Dykinson.
COLLE, S.A., and LYNCH, M. (2010): "DNA profiling versus fingerprint evidence: more of the
same?", en HINDMAN, R., y PRAINSACK, B., (Ed.)., Genetic Suspects. Global Governance of
Forensic DNA Profiling and Databasing, Cambridge, University Press
GÓMEZ SÁNCHEZ, Y. (2007): "Los datos genéticos en el Tratado de Prüm", Revista de Derecho
Constitucional Europeo, 7.
GÓMEZ SÁNCHEZ, Y. (2011): Constitucionalismo multinivel. Derechos fundamentales, Sanz y
Torres.
HINAJEROS, A., SPENCER, J.R., PEERS, S. (2012): "Opting out of the EU Criminal law: What is
actually involved?", CELS Working Paper, New Series, 1.
HINDMAN, R., y PRAINSACK, B., (Ed.) (2010): Genetic Suspects. Global Governance of Forensic
DNA Profiling and Databasing, Cambridge, University Press.
JEFFREYS, A., WILSON, V., THEIN, S. (1985): “Individual-specific ‘fingerprints’ of human DNA”,
Nature, nº 316, 1985, pp. 76-79.
SARRIÓN ESTEVE, J. (2014): "Sobre la necesidad de buscar el estándar o nivel más alto de
protección de los derechos fundamentales en el sistema de tutela multinivel en la Unión Europea",
CEFLegal: revista práctica de derecho, 162, pp. 155-184.
SARRIÓN ESTEVE, J., BENLLOCH DOMENECH, C. (2014): "Biometric Technologies Trends in
Relation to Fundamental Rights Protection in European Union Security Policy: With a Particular
Approach to DNA Technology". Available at SSRN: http://ssrn.com/abstract=2542512 [30 December
2014]
Many thanks for your attention!
