Assessment of the DNA data protection system in the European framework (The lack of data level protection harmonisation at and between the international, european and national levels)

AutorMaría José Cabezudo Bajo
Cargo del AutorAssociate Professor of Procedural Law, Universidad Nacional de Educación a Distancia (UNED)
Páginas43-62
Assessment of the DNA data protection system
in the European framework
THE LACK OF DATA LEVEL PROTECTION HARMONISATION
AT AND BETWEEN THE INTERNATIONAL,
EUROPEAN AND NATIONAL LEVELS
MARÍA JOSÉ CABEZUDO BAJO
Associate Professor of Procedural Law
Universidad Nacional de Educación a Distancia (UNED)
ABSTRACT: Police DNA databases can only be truly effective, from a legal
standpoint, in the fight against serious national and cross-border crime, in par-
ticular organised crime and terrorism, if the regulation thereof meets two
requirements 1) if it allows for DNA evidence to be lawfully obtained, both a)
with the highest respect for fundamental rights and b) in compliance with the
necessary requirements set out in procedural laws. 2) DNA evidence must be
obtained as reliably as possible. However, due to the fact that what I refer to as
“the forensic use of DNA technology” includes three phases —a first phase
involving the collection of the DNA sample; a second phase for the analysis of
the DNA profile in the laboratory, and, finally, a third phase of processing the
DNA data in a database— such DNA evidence will only be admissible in crimi-
nal proceedings if it is obtained lawfully and as reliably as possible in each and
every one of the three phases.
In accordance with said methodological approach, this paper will focus on
compliance with this lawfulness requirement, with evidence being obtained with
the highest respect for those fundamental rights which may be affected in each
phase, although confined to the abovementioned third phase concerning the
processing of data in the DNA database. To this end we will analyse the laws
governing the activities involved in said processing and, where applicable, the
legislation on data protection, mainly from the standpoint of the fundamental
right to the protection of personal data, to determine whether said activities
respect said right.
The first step to achieving this objective is the identification and initial
analysis of data protection laws on the three primary levels where they apply:
specifically, the international level, but limited to international agreements
44 María José Cabezudo Bajo
between EU Member States and third countries; the European Union level; and
the national level. This identification and initial analysis is not without difficul-
ties given the abundance of legislation adopted in this field and its different
scopes of application, indicating a clear lack of data protection legislation har-
monisation at each of the three levels abovementioned, as well as between them.
The foregoing notwithstanding, I will begin this paper with an explanation of the
motivation behind this work and close with my preliminary conclusions.
I. MOTIVATION BEHIND THE WORK
The legislation and standards governing DNA databases at the interna-
tional, European Union (EU) and national levels aim to improve the fight
against serious national and cross-border criminal activity, in particular
organised crime and terrorism. To this end the relevant institutions across the
three indicated levels are adopting rules aimed at ensuring that police DNA
databases provide an effective tool in the fight against serious crimes. One of
the measures to this end is the automated consultation and comparison of the
two types of DNA profiles in databases: identified profiles, which are those
taken from the body of the accused, and unidentified profiles, that is, those
left at the scene of a crime. The automated search is intended to achieve a
match between DNA profiles, in particular, between an unidentified profile
and an identified profile, or between unidentified profiles from different
crime scenes, linking the new crime with one already in the database to one
or more suspects. By virtue of such a match, in the first case the owner of the
unidentified profile can be identified, thereby ascertaining the suspect who
left DNA evidence at the crime scene, and in the second case, the DNA evi-
dence will allow investigators to link one or more crime scenes with a single
unidentified suspect. Ultimately, DNA matching contributes to the solving of
crimes and often represents key expert evidence, which, together with other
evidence, can help prosecutors achieve convictions. Conversely, the lack of
DNA matches may be used as exculpatory evidence. These are the goals
sought by the legislation at the national, European and international levels.
But such laudable goals are far from what was actually achieved by such leg-
islation.
Accordingly, we are analysing the various laws comprising the legislative
framework to answer the question that is the ultimate goal of our work:
whether police DNA databases are a truly effective tool in combating serious
national and cross-border crime. As a result of this analysis we have identified
several legal issues that impede the collection of admissible expert DNA evi-
dence. This, ultimately, prevents us from asserting that police DNA databases
are a truly effective tool in the fight against national and cross-border crime.
To jointly analyse the legal problems that we have identified and design legal-

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