DNA and Crime Investigation in Europe

Since the introduction of DNA analysis by Professor Alec Jeffries 1, genetic identification has
become a revolutionary technique in forensic matters. DNA profiling is considered one of the most
powerful tool in many criminal prosecution, because it has a great importance in preventing and
combating crimes. Even if DNA is a very strong piece of evidence, match between the samples
collected and suspects DNA is not grantee a conviction.

Genetic data collected from the crime scene is used to identify the guilty and also to absolve
the innocent. Beside that, DNA can be used to identify crime and catastrophic victims, or to
establish paternity and to solve inheritance disputes.2

DNA is found in the nucleus of every cell in the human body and it is the fundamental building
block for every individual genetic makeup. The genetic code of every single person is unique with
the exception of identical twins. Consequently any person can be identified from one fingerprint
left on the surface of an object or from one single hair left at a crime scene via DNA profiling. 3

Nowadays, in an interconnected society the phenomenon of crime is keeping in step with the
process of transnationalization and taking advantage thereof. In view of this situation, the
investigation and prosecution of crime have to overcome borders by means of various judicial and
police cooperation instruments, in particular those on mutual assistance and information
exchange.4

In order to deal with the exchange of DNA data throughout the Union and combating cross-
border crime and illegal migration a Convention has been developed (the Prüm Treaty) between

1
***, The history of genetic fingerprinting, University of Leicester,
http://www2.le.ac.uk/departments/genetics/jeffreys/history-gf , accessed in: 13.01.2017
2
Monjer Kader, Stella Tan Wei Ling, Sabrina Ku-An Ling Li, The use of DNA forensic evidence in
Criminal justice, 29 Singapore Law Review, p.44
3
Ibidem
4
Helena Soleto Muñoz, Anna Fiodorova, DNA and Law Enforcement in the European Union:
Tools and Human Rights Protection, Utrecht Law Review,
https://www.utrechtlawreview.org/articles/10.18352/ulr.262/galley/261/download/ , downloaded: 11.01.17

1
the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French
Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of
Austria which was partial transformed into a EU-wide cooperation tool under Council Decision
2008/615/JHA15 and Council Decision 2008/616/JHA.6

Within this cooperation framework, the exchange of DNA profiles and related personal data
acquires great relevance, given the usefulness and universality of the information it offers for
investigations and prosecutions. However, not all aspects of DNA collection, analysis and
exchange are unified on the EU level while national provisions vary a great deal.7

First of all the purpose for which samples of DNA can be analyzed should only be carried out
under circumstances determined by domestic law, according to Recommendation (92) 1.8 Thereby
decisions concerning DNA analysis in a number of European countries differ. For instance English
law provides, that DNA analysis can be ordered immediately after the arrest of a person, on the
mere basis of a decision issued by a police officer possessing the rank of an investigator; Greek
law, mandating DNA analysis when law enforcement authorities, including the police, conclude
that there is serious evidence of guilt.9 In the Spanish system is a dual requirement for the
legitimacy of proceeding to take a sample, namely, that the passive subject must at least be
suspected of having committed an offence in the context of an investigation, and that the offence
should be of sufficient importance, or seriousness, thus guaranteeing the principle of proportion.
In Germany the samples for analysis are provided anonymously to the laboratories, whereas the
resulting. In Holland a sample for DNA processing can only be taken if it helps to prove the case.10

5
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, OJ L 210, 6.8.2008. p. 1.
6
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, OJ L 210,
6.8.2008. p. 12
7
Helena Soleto Muñoz, Anna Fiodorova, op.cit.
8
Council of Europe Committee of Ministers, Recommendation No. R (92) 1 On the use of analysis of
deoxyribonucleic acid (DNA) within the framework of the Criminal Justice System adopted by the Committee Of
Ministers on 10 February 1992, paragraph 4.
9
E. Symeonidou-Kastanidou, DNA Analysis and Criminal Proceedings: The European Institutional Framework,
European Journal of Crime, Criminal Law and Criminal Justice 19 (2011),
10
Peter D. Martin, DNA profiling in crime investigations: An European overview, https://www.promega.com/-
/media/files/resources/conference-proceedings/ishi-10/oral-presentations/17martin.pdf?la=en, p.3

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 Also the Method of collecting sample differ State by State. So it easily can happen that the
collection of sample take place without the consent of the person concerned, if the domestic law
is not regulated otherwise. Every state delimits the standard of proportionality pointed out in the
Recommendation differently. In most countries of continental Europe, however, it is accepted that
even blood or sperm can be received without the prior consent of the individual, when such
analysis is important for the criminal proceedings initiated and a pertinent judicial decision has
been issued.11

Secondly in order to be able to compare and exchange result in crime case investigations if the
suspect resided in another country there could be a common requirement for laboratories.
According to that all laboratories should be using the same method and system.12

Council of Europe in 1997 adopted a Resolution13 on the exchange of DNA analysis results and
ask EU Member States to establish national DNA databases in order to exchange data from the
non-coding part of the DNA molecule. In 25 June 2001 the Council adopt another Resolution14
recommended that all member countries establish compatible DNA databases, analyzing the same
set of STRs to produce their DNA profiles. This allows data to be exchanged between countries to
help with international criminal investigations.15 The point has now been reached where the vast
majority of laboratories in Europe have settled on the use of a similar set of STR loci.16

Under Council Decision 2008/615/JHA EU Member States are obligated to establish national
databases and provides rules which make possible for the competent authorities of other EU
Member States to search in national DNA database. This kind of cooperation and direct access to
the national databases is also followed in the European Criminal Records Information System
(ECRIS).17 Council Decision 2009/316/JHA18 on the establishment of the European Criminal

11
E. Symeonidou-Kastanidou, op.cit., p. 148
12
There are 4 common methods used in DNA analysis: Restriction Fragment Length Polymiorphisn ("RFLP),
Polynerase Chain Reaction ("PCR"), Short Tandem Repeat ("SIR') Analysis, Mitochondrial DA Analysis,
13
Council Resolution 97/C 193/2, OJ C 193, 24.6.1997, p. 2.
14
Council Resolution 2001/C 187/01, OJ C 187, 3.7.2001, p. 1.
15
Peter D. Martin, H. Schmitter & P.M. Schneider A brief history of the formation of DNA databases in
Forensic science within Europe, (2001) 119 Forensic Science International p. 225-231.
16
Peter D. Martin, op.cit.
17
This system was launched in April 2012.
18
Council Resolution 2009/C 296/1, OJ C 296, 5.12.2009, p. 1.

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Records Information System (ECRIS) in application of Article 11 of Framework Decision19 came
up with a communication system in which the EU Member States retain access to their Criminal
Records’ databases, which is a homogenous computerized system for direct access through the
central authorities. In addition to data about criminal records, the transmission of other personal
data such as fingerprints, amongst others, is allowed and makes it possible to identify the subject,
and so this is a possibility with regard to DNA profiles. 20

It is also an interesting question the possibility of preserving samples and DNA profiles of
persons. Recommendation (92) 1 provides in principle that samples or other bodily tissues taken
from individuals for DNA analysis should not be retained after the final decision has been rendered
in the case for which they were used. However the sample can be reserved if it is necessary for
purposes directly linked to those for which the samples were initially collected.21

In case of conviction, the national law should define strict storage periods. In Greece, for
example, it is provided that the genetic prints of convicted persons are retained until their death,
even if the crime is a simple theft. In Germany, such data is removed from the police archives after
a ten-year period, when the convicted person is an adult, also depending on the gravity of each
crime. In the Netherlands, it is provided that both samples and genetic prints can be maintained for
30 years, when the crime is of a certain gravity, and for 20 years, when the crime is of lesser gravity
respectively. 22 In Romania genetic profiles are kept until the person reach the age of 60, or if he
dies before this age, the samples are maintained for another 5 years after death.23

As we can see, the use of DNA in criminal proceeding is not totally harmonized in the Union
level. Collection of biological material falls under the scope of application of national law, and is
followed by analysis implying the application of DNA profiling techniques, which are now
performed on the ground of internationally recognized common standards. Exchange of DNA
profiles, however, falls within the area of EU police and judicial cooperation in criminal matters.

19
Decision 2009/315/JHA OJ L 93, 7.4.2009, p. 33
20
Helena Soleto Muñoz, Anna Fiodorova, op.cit., p. 152
21
Article 8, Recomandation (92) 1
22
E. Symeonidou-Kastanidou, op.cit., p. 155
23
Law number 76/2008 on the organization and functioning of the National Judicial Genetic Data

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 However, in the absence of harmonization of national legislations concerning both the
collection of biological samples and the processing of DNA profiles, we easily can meet
infringements of fundamental rights.