DNA data exchanges between EU

member States and fundamental

rights protection (particularly

fundamental rights to data

protection)

Joaquín Sarrión Esteve

Assistant Professor, University of Valencia

IALS Visiting Fellow

joaqsarrion@gmai.com

IALS Lunchtime Seminar

27 November 2014

Program

I. Motivation.

II. Methodology.

III. DNA data legal framework

a) DNA data EU legal framework.

b) DNA data international (non EU) legal

framework.

IV. Actual trends of fundamental rights protection

in a multilevel system regarding DNA data

(conclusions?)

I. MOTIVATON

IALS Lunchtime Seminar

27 November 2014

I. MOTIVATION

As we know, new technologies help us to identify individuals

using the called biometric technologies, using for example

fingerprint/palm print identification, iris identification, face

recognition or DNA technology.

My research is focused on DNA technology (forensic use) in

criminal investigation (DNA fingerprinting/DNA evidence/DNA

typing). What can we say about it?

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.

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 also

use the provision of the sex characteristic of the subject,

Problem: The progress of Science can convert non-

coding DNA in coding DNA.

I. MOTIVATION

The goal of the use of DNA technology in criminal

investigation is to obtain a valid evidence for a penal process

[Cabezudo Bajo, 2011] (usually national process, with the

exception of international criminal courts).

•The DNA evidence must be obtained with respect to

fundamental rights and legal guarantees (evidence

validity)

•Really, the problems in relation to this goal arise at three

levels: the technical conditions, (effectiveness), the

interpretation of the results, and finally the respect of

fundamental rights and legal guarantees in the realization

of the DNA evidence (but my research is focused on the

third one, and particularly regarding fundamental rights).

II. METHODOLOGY

IALS Lunchtime Seminar

27 November 2014

II. METHODOLOGY

Multilevel constitutionalism approach

European legal space is based on a context of legal systems

with different levels which are increasingly interlinked (Gómez

Sánchez, 2011: 20).

Therefore we need a theoretical key to approach and try to

explain these relationships. A good theoretical approach is the

multi-level constitutionalism, particularly in the research of

fundamental rights protection (Bilancia, De Marco, 2008).

II. METHODOLOGY

We want to identify the requirements for the respect of

fundamental rights in the use of DNA technology (to obtain a valid

DNA evidence in a criminal national procedure) in this context of

the European multilevel system in which we live (European

Convention on Human Rights, EU Fundamental Rights, EU

Member States [Constitutional] Fundamental Rights).

Therefore, there are at least three levels to take into account:

European Convention Level

EU Level (EU Charter/Fundamental Rights as General

Principles of EU Law)

National Level

III. Legal Framework

IALS Lunchtime Seminar

27 November 2014

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

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.

The EU Legal Framework

Fundamental rights protection

The EU Legal Framework

Fundamental rights level protection, article 53.

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.

DNA Prüm system:

Use of DNA national databe 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)

European standard set of loci (EES) (7) + Interpol Standard Set of Loci

(ISSOL). 2009 EU Council Decision of 30 November 2009 extended EES

to 12 loci.

International (non EU) Legal Framework

Bilateral Agreements (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

Interpol Standard Set of Loci (ISSOL)

IV. Actual trends

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

IV. Actual trends

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

…

And identify different protection standards involved.

IV. Actual trends

It is important to differentiate genetic or biological DNA or

sample, whose extraction occurs in the first phase, from

genetic or DNA data corresponding to the second and third

phase, as the constituent of the sample data is the extracted

profile which is incorporated in the data base

The collection of the sample is a prius which precedes

the extraction and the treatment in a criminal computer

database.

IV. 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 (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)

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.

Conclusions?

How? Of course, EHRC, as a minimum, but…

Highest level of fundamental right protection as key

solution for guarantee a valid DNA evidence?

EU Level (ECJ, Melloni, 2013). 1

1 December 2014. Finish the transitional period in

respect of certain third pillar measures in the field of police

co-operation and judicial co-operation in criminal matters

(full ECJ jurisdiction) [Article 10 of Protocol 36 to the

Treaties]

UK opted out (June 2014). Rep-opt-in? Possible rejoin

until 30 September 2015

National Level Fundamental rights of EU Member State that

initiate the criminal proceeding.

Conclusions?

Many thanks for your attention!