Summary: The main function of DNA databases for forensic use is to generate matches between the profiles of the individuals entered in them and the evidence found at the scene of an incident.
The entry of profiles, biological samples and evidence is conditioned by the legislation of each country, according to its criteria of inclusion, time of permanence and removal. Differences in legislative models present some difficulties in international cooperation in the exchange of such data between different countries.
By studying the model of European cooperation -they lead the way in this area- a path can be seen for MERCOSUR (1) in terms of the implementation of harmonized standards that facilitate the exchange of information between its different bases to ensure an adequate level of protection of the rights of individuals.
KEY WORDS: DNA data banks for forensic use; international cooperation; European Union; Mercosur.
Many countries (2) have a national system of DNA banks. However there are others that do not yet have a national standard governing the issue, as is the case with the Argentine Republic.
It should be noted that the regulatory vacuum had not been an obstacle in several countries for the creation of banks of genetic profiles, on the contrary, the emergence of these banks promoted the development of regulations as in the cases of Chile and Brazil.
The DNA profile is obtained from taking biological samples such as blood, hair or saliva and consists of a numerical sequence of the non-coding DNA part, which does not provide sensitive information but only allows the identification of the Individual.
These individual profiles, in turn, are loaded and stored in what are called databases or records. It should be emphasized that in the collected biological sample is possible to find all the genetic information of the individual, the coding and the non-coding, so if it is used inappropriately it can serve as a means of social stigmatization or discrimination. This is not the case with other types of forensic evidence, such as fingerprints, which are often equated to DNA profiles.
For this reason any genetic data should be considered a data that affects genetic intimacy. The vulnerability of the samples must be assessed when stored in a bank. It is mandatory to set a restrictive access to them and to monitor the people who control the data and the necessary coding for the storage.
There are many questions raised about the consequences that the existence of a file of sensitive information from groups of people or of an entire nation held by the State or private entities could be used in non-predicted ways with unethical or illegal views.
Above all, there is a critical perspective on the forensic use of DNA in terms of the vulnerability of certain ethnic groups and the possibility of its manipulation by the police in criminal systems that sometimes tend to be corrupt.
It is necessary to take into account that genetic profiles do not offer results of full identification, therefore, they are not irrefutable and it is very important to ensure the veracity of the samples to preserve all phases of the chain of custody.
DNA banks need access to part of the human body as a biological source; in general this access is made by the informed consent of the person as an expression of his will. Consent and the right to information are essential to enforce the protection of personal data.
States and local police jurisdictions that legally obtain a person's DNA to develop a forensic profile that is entered into a database generally retain the person's biological sample as well, which contains intimate information about that individual's genotype. For this reason many issues (though not all of them) associated with privacy, could be resolved if the biological sample is destroyed once the DNA forensic profile is obtained.
The European experience
Attempts to harmonize the exchange of genetic information between the various countries of the European Union encountered great difficulties due to the huge disparity of positions between various laws. Each Member State adopted different legislation on this issue on the basis of different doctrinal positions. These positions come from historical, political and sociocultural views that, while starting from common bases such as the recognition of the rights to dignity and integrity of the individual, have been profiled differently.
Given the recent proliferation of research-based genetic data banks and the claims that such data can be accessed at the regional level to make judicial cooperation more efficient, a reflection is being made that faces not only social, but economic, legal and ethical issues
Within the European Union, most member countries have genetic databases and national laws governing the creation, maintenance and use of genetic databases. However, this diversification has only recently begun to be questioned and a possible joint solution considered.
Europe is facing difficult issues negotiating at the legislative level regarding this topic at the same time that Brexit is taking place. We can expect that UK and EU foreign policy will be coordinated as closely as possible but major law enforcement and judicial cooperation in criminal matters and the rules for cooperation in Europol and Eurojust cooperation still need to be determined.
On the other hand, the security consequences of a no-deal Brexit -with no implementation period- may be that operational cooperation which relies on EU tools and instruments would stop. This would create immediate legal and operational uncertainty with the risk of disruption and potential security implications. The EU should also prepare for the implications of a no-deal Brexit on the future security partnership with the UK.
The goal is to find a path of common action to preserve the right to privacy and procedural guarantees that do not depend only on each country in isolation.
Beyond the existence of several international declarations and resolutions of the European Parliament, the complex interrelation between the creation and the use of data banks of DNA within the member states continues to be highly problematic.
The debate on the usefulness of DNA databases in the prevention of crime, especially of terrorism, puts the issue within those of great current relevance in the international sphere. The balance between the right to security and the due process is difficult to achieve and depends a lot on the historical, cultural and philosophical perspectives of each country.
The common denominators of all the European documents are prudence and the requirement to provide adequate protection for genetic privacy against possible acts of discrimination that may arise from these practices.
The first protocol of intent for the cross-utilization of such data among various States was signed in May 2005 between the seven countries of the European Union at that time: the Treaty of Prüm (3).
Its aim was to encourage the configuration of systems that enable the collection, access and exchange of DNA data and fingerprints for strengthening the cooperation of the European police in fighting against terrorism, cross-border crime, and illegal immigration.
This type of cooperation is carried out through the exchange of sensitive information that goes from vehicle registration to fingerprints and information from the non-coding part of the DNA. This means that the exchanged data must not contain any indication leading to the direct identification of the person. A subsequent decision of the European Council regarding issues of Justice and Internal Affairs on 15 February 2007 established to integrate the most relevant aspects of the Treaty of Prüm to the Community Law.
After the analysis of the legislation of various countries of the EU it is possible to define two criteria at the legislative level in what refers to the creation and maintenance of the DNA profiles: one of them has an expansive effect – England, Austria, Denmark, Estonia, Finland, Latvia, Lithuania, Scotland, Slovakia, among others- and the other one is restrictive in terms of the extension of the database -Belgium, France, Germany, Hungary, Ireland, Italy, Luxembourg, Holland, Poland, Portugal, Romania, Spain and Sweden-.
It should be questioned whether or not a more extensive criteria of inclusion is translated into higher matches between profiles of individuals and evidence from the scene of the crime. In other words, if an expansive criteria necessarily implies more effectiveness.
In addition, it is necessary to analyze the diversity of criteria in the legislation for the inclusion and retention of profiles in the databases, and how it affects the international cooperation in the exchange of genetic data. The main problem that arises is that a european citizen can see his data shared with countries that offer a quite inferior protection to the one of his country of citizenship. There are still european countries that have little experience in this matter.
In the group of countries with restrictive legislation, there is a condition generally imposed to the inclusion of profiles: The individual has been prosecuted or convicted of a crime involving a sentence of imprisonment or has committed a serious crime.
The criteria for inclusion and removal of profiles in the countries that have a legislation of expansive effect is distinguished by its lower threshold of inclusion and greater periods of preservation in the database, resulting in a more rapid expansion of the number of included profiles. The majority of these countries allow the suspects of any type of crime to be subjected to the taking of a biological sample, and consequently, the inclusion of his DNA profile in the database.
The expansive option premise is that by increasing the number of individual profiles it is possible to increase the number of matches between people and evidence of crime scenes. It is argued that individuals who commit minor offenses or are merely suspects may be involved in more serious crimes in the future.
The DNA databases of certain jurisdictions retain the profiles of individuals who were never formally accused of any crime, nor prosecuted, nor convicted. However, in this way these individuals are categorized symbolically and biologically as a risk to the rest of the population and will also be sought as suspects for any crime that is committed in the future. This could turn into an apparatus for bio-surveillance of indeterminate duration because the inclusion of profiles on the DNA bases allows the inclusion of people who is only considered as suspicious and, in some cases, could last indefinitely. A part of their human body is conserved and the considered suspects will have to prove their innocence to society by the fact that their profile never matched the evidence of a crime scene.
This scenario is related to biological determinism and emphasizes the danger of manipulation of genetic data. This data could be employed to start research on human biology not limited to the identification of the author of a crime, but to the verification of the predisposition to crime of some marginalized groups of people.
On the other hand, there may be cases of false positives that arise from wrong identification and this could cause damage to an innocent person. In other cases, the sample taken at the scene of the crime may be very impaired and it could not be possible to obtain a profile successfully. For these reasons, in judicial investigations DNA analysis must meet the highest standards and it has to strive constantly for perfection. It is important to pay special attention to the control of quality and the certification of the laboratories involved. It is a must to guarantee that laboratories ensure their operation and the technical expertise of their workers. The general way to do this is by certification, according to ISO standards, or through specific protocols in a complementary way.
It is necessary to address the problems that the European scene presents to be able to provide more universal solutions. This is why it is important to continue the path towards a harmonized European system to strength the cooperation of the police, ensuring the protection of personal data of individuals and observing how the degree of protection varies in each legal system.
This path should lead to the formation of a unified European DNA database built from the understanding among different legislative systems and focused on the ideas of proportionality, integrity, individual privacy and presumption of innocence to avoid inequalities between the citizens of all the European Union.
Among MERCOSUR Member States and associated countries only Brazil, Chile and Uruguay have a specific national legislation on this subject. Brazil enacted National Law 12.654 in 2012 that authorizes the compulsive collection of genetic material for criminal investigations and regulates the creation of a Bank of Genetic Profiles at the national level. Uruguay has a national law enacted in 2010 and Chile created the National System of DNA Records by Law 19.970
It would be important to move towards a harmonized legislation in MERCOSUR since the implementation of the same standards within the regional bloc could facilitate the exchange of information between databases and ensure an adequate level of protection of individuals rights.
The legal harmonization requires common parameters and minimum standards. The main problems that should be addressed in MERCOSUR include the lack of national legislation in most countries, the preservation of the chain of custody, the protection of the evidence and the monitoring of the guidelines for forensic protocols established by the United Nations.
We suggest that the Parliament of MERCOSUR assumes the role of setting standardized parameters for legislative legal frameworks that could be later internalized by each of the member States.
While there are formal channels of information exchange between the members of MERCOSUR, it has been observed that the exchange of information depends, in many cases, on the good or bad relationship between the actors involved. On the same page, there is not a smooth exchange of data between the police and the judiciary system of Member States.
It is necessary to simplify the mechanisms of exchange of information to make it arrive on time and in a proper way, regardless the people in charge of the transmission/reception.
It is important to achieve a closer cooperation between MERCOSUR countries and those from the European Union -the most finished model of integration between police services and judicial authorities. The AMIC - Interregional Framework Cooperation Agreement - (4) could be taken as a starting point of this process of political cooperation between both blocks. The AMIC raises the goal of strengthening international peace and security, and transnational security is proposed as a conducive way towards cooperation. The purposes of this agreement are to exchange information and experience, to obtain technical and institutional assistance and to provide training for officials within the jurisdiction to promote the protection of human rights at the core of institutional cooperation.
In the short-term MERCOSUR countries should promote the establishment of minimum standards in the procedures and judicial cooperation of Member States. It would be necessary to implement a standardized system for the collection and storage of samples. This will allow to share the content securely between the agencies involved. On one hand there should be a regional data bank with genetic information, on the other hand, MERCOSUR countries and their partners, including their law enforcement and security agencies should be able to consult on line the above-mentioned data bank.
The implementation of this recommendations may require new equipment and infrastructure. It will be necessary that MERCOSUR countries create a scheme for the allocation of the necessary funds to incorporate technology and equipment.
(1) MERCOSUR in Spanish or MERCOSUL in Portuguese -officially Southern Common Market- is a South American trade bloc established by the Treaty of Asuncion in 1991 and Protocol of Ouro Preto in 1994. Its full members are Argentina, Brazil, Paraguay and Uruguay. Venezuela is a full member but has been suspended since December 1, 2016. Associate countries are Bolivia, Chile, Colombia, Ecuador, Guyana, Peru and Suriname. Observer countries are New Zealand and Mexico.
(2) The UK National Criminal Intelligence DNA Database (NDNAD) f(NDNAD) was created by the government of the United Kingdom in April 1995. The second database in the world was installed in New Zealand in the same year. After that, many countries increasingly established a national bank of DNA for forensic use. France created the Fichier National Automatisé des empreintes génétiques (FNAEG) in 1998. The same year the FBI organized the Combined DNA Index System (CODIS) in the US. At the beginning it was intended to include only the profile of sex offenders and then it expanded by adding genetic data of almost all the individuals involved in a crime.
(3) The Treaty of Prüm was signed on May 2005 in Prüm (Germany) by seven member States of the EU (Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria) with the aim of improving and deepening the exchange of information within the Union in the fields of fighting against terrorism, cross-border crime and illegal immigration. The ultimate goal of the Treaty was to create a network of police information within Europe to increase the effectivity in prevention and repression of these type of crimes. To achieve this, the States parties assume, among other obligations, the creation of data bases of profiles of non-coding DNA, and commit themselves to put together information regarding the genetic data of citizens of different nationalities so that, in a first query, it is possible to identify the genetic identity of a subject and its sex, and, if there is concordance with an external sample, or with a profile enrolled in the database of another State, to proceed, in a second phase, to his complete identification within the framework of requirements and conditions outlined in the Treaty.
(4) The European experience is characterized by focusing its efforts on combating cross-border crime and terrorism but, given that the MERCOSUR is an area of relative peace and security with regard to terrorism, the major focus should be made on transnational crimes, such as drug trafficking and the traffic of weapons and people.