THE DUTCH FOCUS on DNA in the CRIMINAL JUSTICE SYSTEM: NET-WIDENING of JUDICIAL DATA John A

THE DUTCH FOCUS ON DNA IN THE CRIMINAL JUSTICE SYSTEM: NET-WIDENING OF JUDICIAL DATA John A. E. Vervaele, F.C.W. de Graaf et N. Tielemans

ERES | « Revue internationale de droit pénal »

2012/3 Vol. 83 | pages 459 à 480

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THE DUTCH FOCUS ON DNA IN THE CRIMINAL JUSTICE SYSTEM: NET-WIDENING OF JUDICIAL DATA!

J.A.E. VERVAELE, F.C.W. DE GRAAF & N. TIELEMANS! Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

1. Introduction The Netherlands is one of the pioneer countries in the field of the use of DNA in criminal matters. Already in 1988 DNA was used for the first time as an investigative tool in criminal proceedings. In the case in question, DNA material was used in order to investigate whether a person, convicted of raping two women, had indeed been the perpetrator of this crime.1 A DNA investigation was thus carried out after a conviction. The investigation was assumed to be based on article 195 of the Dutch Code of Criminal Procedure (CCP), which makes it possible to physically investigate the suspect.’s body However, in 1989 it was decided by the Dutch Supreme Court that this competence did not cover the possibility of a DNA investigation. As a consequence, legislation dealing with the use of DNA in criminal proceedings was formulated in 1994.2 In other words, following the UK example, the first legislative package on DNA in criminal proceedings was introduced in order to meet the procedural legality principle under article 1 CCP and thus to create sufficient possibilities to use DNA as an investigative and evidentiary tool in criminal matters. Already in 1997, a DNA database was set up at the National Forensic Institute (NFI), containing DNA profiles. Although there was some discussion at the beginning, it was clear that the storage of DNA profiles would be the exclusive competence of the NFI under the guidance of the prosecutor. In other words, a DNA investigation (including sampling/profiling) is a prosecutorial matter, not a

! The original version en Spanish will be published en Juan-Luis Gómez Colomer (editor), ADN y proceso penal. Una visión integral, Editorial Tirant lo Blanch, Valencia 2013, forthcoming. ! J.A.E. Vervaele: Professor of economic and European criminal law at Utrecht University and of European Criminal law at the College of Europe in Bruges. F.C.W. De Graaf: Studentassistent at Utrecht Law School, Willem Pompe Institute. N. Tielemans: Studentasssistent at Utrecht Law School, Willem Pompe Institute. 1 De Poot and Kruisbergen 2006, p. 27. 2 Stb. 1993, 596. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES 101-200.qxp:RIDP vierge par 100 qxp 21/05/13 19:18 Page114

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police matter. The police authorities, even though they have judicial functions, are not allowed to set up their own DNA databases. After 15 years, it also became clear that the first legislative package needed substantial legislative changes to cope with new needs. In April 2012 a new legislative package came into force3. The use of DNA in criminal proceedings, as an investigative and evidentiary tool, is however not a subject which is lacking in controversy. The Supreme Court has recently reviewed and reopened several criminal cases involving res iudicata Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES convictions because of serious indications of errors involving DNA evidence4. These cases, considered as serious miscarriages of justice, have shown that DNA samples can be contaminated by improper police work or even manipulated by police authorities when they are involved in the initial investigation of the crime scene. The aim of this paper is to provide a brief overview of the actual Dutch DNA regulation used in criminal proceedings. After a short introduction to the Dutch DNA legislation, an overview will be given of the most important regulations in the Netherlands concerning DNA investigations for the purpose of criminal proceedings. After that, we will specify the object and purpose(s) of the different kinds of DNA investigations. Attention will then be paid to the thresholds that have to be met in order to legitimately carry out DNA investigations and the persons who can be subjected to DNA investigations. After this, a description of the Dutch way of preserving DNA samples will be given (the Dutch legislation concerning DNA databases). Finally, the relationship between the use of DNA in criminal proceedings and human rights will be discussed and some attention will be paid to the Prüm acquis. 2. Current legislation concerning the use of DNA in criminal proceedings The actual legislative package contains legislation from different sources, combining the CCP, special statutes and Royal Decrees. The general procedure concerning DNA sampling and DNA profiling is laid down in the CCP, especially in article 138a and article 151a CCP. Apart from the CCP, there is also legislation concerning the collecting of DNA samples from convicted persons. This legislation has been laid down in the ‘DNA Testing (Convicted Persons) Act’.5 Furthermore, the DNA (Criminal Cases) Tests Decree (DNA Decree) contains

3 Stb. 2012, 131. 4 C. Blakesley, La Preuve Pénale et des Tests Génétiques, International Academy of Comparative Law & American Journal of Comparative Law 46 AM. J. COMP. L. 605 (Supp. 1998). 5 Wet DNA-onderzoek bij veroordeelden, Stb. 2007, 513. See also: ECHR 7 December 2006, appl. no. 29514/05 (Van der Velden vs. The Netherlands). Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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legislation with respect to the DNA database: in which cases and under which conditions is it possible to preserve DNA stains in the database? 2.1. Applicable articles in the CCP Before commenting on the specific provisions in the CCP it is necessary and useful to underline some essential factors of Dutch criminal procedure and DNA. First of all, in the Netherlands prosecutors are judicial authorities that investigate (not only prosecute) and supervise the police authorities having judicial functions. Second, the Netherlands still has an investigating judge, but he has lost most of Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES his investigative monopoly and mostly deals with the authorization of certain coercive measures. Third, when it comes to evidence, there is no such thing as “scientific evidence” as a legal concept. That means that all the evidence gathered by technical means will be the outcome of an analysis by an expert. The outcome will be presented in an expert report. Eventually the expert can be called to testify in court. The approach to DNA investigations and DNA evidence is thus largely one which focuses on ‘expert’ evidence. The CCP starts with a definition of a DNA investigation, in order to indicate the objective and the scope of the investigation, including the persons who can be subjected to such an investigation. Article 138a CCP contains the definition of a DNA investigation in criminal proceedings: ‘DNA investigation concerns the investigation of cell material which is aimed at comparing DNA-profiles or determining observable personal features of an unknown suspect or unknown victim or determining kinship.’ In other words, the use of DNA evidence in the Netherlands is clearly not limited to samples taken from convicted persons, but includes a wide circle of people, including the suspect. This is in line with the international evolution in the field, but is not without controversy. At the beginning of 2012, Maryland’s highest court held that the collection of DNA samples from people arrested but not yet convicted violated the Fourth Amendment’s prohibition against unreasonable searches and seizures6. In August 2012 Chief Justice John Roberts Jr. stayed that ruling while the Supreme Court decides whether to hear Maryland’s appeal against the state court decision. It still remains to be seen if the Supreme Court will hear this case. In the USA there is disagreement among state and federal courts that have considered the question. Currently, 24 states and the federal government have laws allowing DNA sampling before conviction. The CCP makes a clear distinction between a DNA investigation with consent (the classic version) and a DNA investigation without consent, which is

6 Court of Appeals of Maryland 24 April 2012, no. 68 (Alonzo Jay King jr. vs. State of Maryland). Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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necessarily a coercive measure. The CCP also contains the procedural rules concerning the way in which a DNA investigation has to be pursued, by whom (which authority, prosecutor or judge) and under which thresholds. DNA profiles are only to be processed for the purpose of prevention, detection, prosecution and the trial of criminal offences. One important change in the recent amendment to the Code of Criminal Procedure has been the changing of the purpose of this investigation. Before this adjustment, the purpose was ‘to find the truth’. Now it has been replaced by the Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES ‘interest of the criminal investigation’. This change reflects the fact that DNA has become an investigative tool and is not only an evidential matter. In order to express this purpose of DNA investigations, the legislation has been changed in this respect. ‘In the interest of the investigation’ is a criterion that has been used more often in the CCP for the use of coercive measures. In the CCP, no general indication has been included as to what ‘the interest of the investigation’ actually means. It is important, however, that the public prosecutor can point out why a DNA investigation contributes to the investigation and how this investigation can lead to the taking of criminal law decisions.7 In short, changing the purpose of a DNA investigation has increased its range and has added a number of possibilities. Article 151 (a) (1) deals with the classic DNA investigation, comparing DNA profiles taken from people voluntarily in order to detect matches, whether or not in a large-scale DNA investigations.8 According to art.151a, paragraph 1, the public prosecutor can initiate a DNA investigation in order to compare DNA profiles, using the DNA material of a suspect or of a person against whom no suspicions have arisen (a third party). A threshold that has to be met in order to perform a DNA investigation is therefore the condition that there must be a suspicion. The DNA material of this person can only be taken with his permission, which has to be in writing. The public prosecutor designates an expert to perform the investigation. This expert has to be linked to one of the laboratories that have been approved for this purpose. Besides the the Netherlands Forensic Institute (NFI) and the Forensic Laboratory for DNA investigation in Leiden (FLDO) which mostly carries out counter investigations on behalf of suspected persons, several private laboratories have been formally approved. If a DNA investigation is performed on an unknown suspect, the police officer with a judicial function has the same powers as the public prosecutor (paragraph 3). The suspect has a right to a counter

7 Kamerstukken II, 2009-2010, 32168, nr. 3, p. 24. 8 This has been emphasized in the latest version of Art. 151a CCP (Kamerstukken II, 2009- 2010, 32168, nr. 3, p. 25). The sentence ‘DNA investigation which is aimed at comparing DNA-profiles’ has been included. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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investigation (paragraphs 4 and 6). If there is not enough cellular material available to carry out a counter investigation, and there is only one suspect who has provided DNA material, he has the right to appoint the original expert to carry out the counter investigation. If the counter investigation confirms the initial conclusions, the suspect has to pay his share of the costs thereof (paragraph 7). The public prosecutor notifies the convicted person, by means of a written report, of the results of the DNA investigation if the DNA profile matches another already processed DNA profile and if the interests of the investigation allow this

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES (paragraph 5). Rules on the processing of DNA profiles and cellular material have been laid down in administrative decrees, after consultation with the Dutch Data Protection Agency. Article 151b CCP provides for the possibility for the public prosecutor to order a coercive sampling of DNA when there are serious indications that the suspect9 is involved in an offence which has been described in art. 67 CCP (provisional detention is possible). In other words, there is here a threshold of gravity linked to substantive criminal law. In fact art. 67 CCP refers to offences with a maximum sentence of at least 4 years imprisonment. This coercive investigative power is only used when the suspect does not provide (written) consent. This order cannot be given before the suspect is heard by the judicial authorities. He has the right to be assisted by legal counsel (section 2). Normally, the sampling is performed by means of a cheek adhesive. If this is not desirable, the taking of blood or hair samples is also possible. Sampling is normally performed by a doctor or a nurse, and if necessary with the help of police officers (coercive powers). The DNA (Criminal Cases) Tests Decree (DNA Decree) contains further rules on the execution of the rules laid down in article 151b CCP. Article 151c CCP states that a DNA profile from a known suspect should be made using the material that is taken from him for this purpose, except for exceptional, weighty reasons. This means of investigation offers the best results, with the least possibility of errors being made. Also, in this way the suspect knows that a criminal investigation is being carried out, especially using his/her DNA sample. Another consideration is that this way of investigation provides for minimum costs being incurred by the Netherlands Forensic Institute.10 Article 151b provides for an exception, however: ‘in case of very weighty reasons, a DNA investigation can be performed on cellular material that has been traced on objects, taken from the suspect or on cellular material that has been obtained in a different manner’.

9 A suspect is the person against whom a judicial investigation has been started. Suspicion is based on reasonable grounds to believe that he/she has committed an offence. 10 Kamerstukken II 1999-2000, 26271, nr. 6. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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Article 151d concerns the possibility for the public prosecutor to conduct a DNA investigation aimed at determining observable personal features of an unknown suspect or victim. This has to be in ‘the interest of the criminal investigation’. As can be seen from this overview of DNA investigations, the Public Prosecutor has a leading role in the investigation. The focus is on taking samples from persons (much less on samples at the crime scene, although the latter is not impossible). The thresholds concern the gravity of the crime when it comes to the use of coercive powers. The assistance of a lawyer becomes a right when the

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES threshold is reached, but the prosecutor can order the investigative measure without any (prior or a posteriori) authorization by a judge of freedoms or the court. We now turn to some specific features of the DNA Investigation, being the DNA testing of convicted persons, the DNA kinship investigation and the DNA investigation of multiple persons. 2.2. The DNA testing (convicted persons) Act There are several ways under the DNA Testing (Convicted Persons) Act to provide for the DNA investigation of convicted persons. First, the trial court or the prosecutor dealing with out of court settlements (such as the transaction (where the prosecutor reaches an out of court settlement or functional plea bargain with the suspect)) can order that a sample of cellular material be taken from a person who has been convicted of an offence, when the threshold mentioned in article 67 CCP (a crime that can lead to provisional detention, mainly offences carrying a statutory maximum prison sentence of at least four years) is met. There are two exceptions: a. A DNA profile has already been processed earlier, based on article 151a, article 195a CCP or article 23 of the Act concerning the protection of personal data. b. no order for the collection of samples will be made if, in view of the nature of the offence or the special circumstances under which it was committed, it may reasonably be assumed that the determination and processing of the DNA profile will not be of significance for the prevention, detection, prosecution and trial of criminal offences committed by the person in question. If a DNA profile that has been processed, as determined in the CCP, would have to be destroyed, it will nonetheless remain processed if this person has been convicted of an offence as mentioned in art. 67 CCP and the public prosecutor has decided that it is reasonably plausible that processing this DNA profile is meaningful for the prevention, detection, prosecution and trial of criminal offences committed by the convicted person. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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The Public Prosecutor can also order a sample to be taken from a convicted person if there are compelling reasons to do so, when there are existing DNA samples from the person in question. For the execution of the court order or the order of the public prosecutor, a similar expert procedure applies as the one explained under article 151a. 2.3. DNA kinship investigation As was briefly mentioned above, the CCP has been amended in order to provide for a legal basis for a kinship investigation (determining kinship, “The DNA Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES relationship Test”), determining the observable personal features of an unknown suspect or victim and some other issues.11 What reasoning lies behind the latest changes in DNA legislation, particularly with respect to the introduction of kinship investigations? Kinship searches in criminal investigations have marked a new ‘era’ in DNA investigations in the Netherlands. Previous to the new DNA Act, only a ‘classic’ DNA investigation was possible. Now, with the possibility of determining kinship, a DNA investigation is no longer confined to the classical ‘hit/no hit’ comparison. It has now been made possible to identify people via their family members. Partial matches between two DNA profiles can lead to the eventual detection of the suspect.12 In the explanatory memorandum, several reasons were mentioned as to why this new possibility should be implemented in the legislation.13 First of all, the effectiveness of the criminal investigation is mentioned. The arsenal of possibilities in DNA investigation techniques has been enormously extended. The legislator indicated that it would be unwise not to make use of these possibilities in order to conduct expedite criminal investigations. Time and capacity will be gained. More generally, the introduction of kinship searches will contribute to the detection and prosecution of criminal offences. A reference is made to the English situation, in which the introduction of kinship searches has contributed enormously to the detection of offenders. A practical argument is given as well: it should be possible for the government to make use of information, if obtained lawfully, in order to detect offenders/suspects of serious crimes. If the NFI detects information accidentally, it is allowed to make use of it. Then why should this not be possible if one actively looks for this information? A comparison is made with information obtained via the tapping of someone’s telephone and the fact that this (accidentally) obtained information can be used in criminal proceedings. The

11 Wijziging van het Wetboek van Strafvordering en de Wet DNA-onderzoek bij veroordeelden in verband met de introductie van DNA-verwantschapsonderzoek en DNA- onderzoek naar uiterlijk waarneembare persoonskenmerken van het onbekende slachtoffer en de regeling van enige andere onderwerpen. Stb. 2011, 555. 12 Kamerstukken II, 2009-2010, 32 168, nr. 3, p. 2. 13 Kamerstukken II, 2009-2010, 32 168, nr. 3, p. 4. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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same should be made possible within the framework of a DNA investigation. From the perspective of an appropriate response to crime, it would not be justifiable towards victims and the relatives of victims, if available information about a suspect could not be used. This is even more significant when it concerns very serious violent and sexual crimes and repeat offences could have been prevented with an adequate use of the available instruments. Counter-arguments are mentioned as well, but they were overruled by the legislator. These relate to the possibility of arresting innocent people and

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES inadvertently exposing certain family ties. The arresting of innocent people is not an unlikely event, as the kinship search cannot give the same degree of assurance compared with the classical DNA investigation (where complete matches are indicated). Finally, this new method of investigation (going through the NFI database in order to find partial matches between DNA profiles) will impose a heavy burden on the capacity of the NFI, the police and the public prosecutor. The new articles 151da and 195g CCP are implemented in order to provide for a legal basis for kinship investigations. Paragraph 1 of article 151da provides for the following: although the Personal Data Protection Act (Wet Bescherming Persoonsgegevens, hereafter APD) forbids this, it has now been made possible to carry out a DNA investigation which intends to identify kinship. An exception has been made to art. 21, paragraph 4 of the APD, which forbids the processing of information concerning hereditary characteristics. Article 151da will be a lex specialis of article 21(4) APD which therefore allows for this exception. The person involved, however, must give permission and has to be able to freely determine his own will in this respect. In the DNA Decree, further rules will be laid down with regard to this subject. Paragraph 2 provides for the possibility to use cellular material from a convicted person in a kinship investigation. It has been made clear in the Explanatory Memorandum that art. 151da has a complementary role to the classic DNA investigation (art. 151a CCP).14 Kinship searches can only be carried out if the classic DNA investigation does not provide results and when there is hardly any or no or very little information available about the offender. Paragraph 3 limits the possibilities for carrying out a kinship search to crimes for which a prison sentence of 8 years or more is possible and a number of specific crimes. Furthermore, in this case the prosecutor does need prior authorization from the investigating judge. In other words higher substantive and procedural thresholds have been foreseen for the use of this specific type of DNA investigation.

14 Kamerstukken II, 2009-2010, 32 168, nr. 3, p. 6. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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2.4 Large-scale DNA investigations on a plurality or multitude of persons. The large-scale DNA investigation is aimed at comparing the DNA material of an unknown suspect with the DNA material of a group of other people in order to find a ‘match’. The DNA material of this group of people may not be used for any other purposes and may not be compared to DNA profiles collected in a DNA database. The persons who are invited to give their DNA material for such an investigation should give their permission in writing. It should be made clear that one is cooperating as a third party and not as a suspect. Also, the single fact that a

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES person refuses to cooperate with the investigation should not make him a suspect.15 If no match between the DNA of a person from this group and the DNA of the unknown suspect has been found, the DNA material of this person has to be destroyed. If, however, there is a match, the person will become a suspect from that moment onwards. His DNA profile will then be stored in the DNA database and will be compared to all other DNA profiles in the database, in so far as it concerns a suspicion as mentioned in art. 67 CCP. The large-scale DNA investigation can be ordered by the public prosecutor. If, however, the large-scale DNA investigation concerns a group of more than 15 persons, the examining judge must grant authorization (art.151a par.1 CCP). 2.5. Interim conclusion After the analysis of the general and the specific features of the use of DNA investigations in Dutch criminal proceedings we can draw some interim conclusions on the DNA investigation phase. The legislative amendments introduced by the legislative package of 1994 to the one of 2011-2012 have been very substantial. The legislator has extended the DNA investigation into a proper investigative tool, thereby applying it to wider circles or specific circles of persons, such as the DNA investigation of a multitude of people or the kinship investigation. The legislator has also given wide discretion to the prosecutor when it comes to the use of a DNA investigation in relation to convicted persons. The new formulation of the DNA investigation in the interest of the criminal investigation instead of finding the truth reflects the broader scope of DNA investigations in criminal proceedings. Although there has been a widening and an expansion of the provisions, the legislator has also been keen to clarify exactly who has the leading role in this procedure. The prosecutor has the leading role. Furthermore, the main focus is on the taking of samples from persons and an expert analysis thereof, and much less on the taking of random samples at the scene of the crime.

15 Kamerstukken II 1999/2000, 26 271, nr. 6, p. 40, Kamerstukken I 2000/01, 26 271, nr. 210b, p. 4 and Kamerstukken II 2000/01, 27 400 VI, nr. 49, p. 8 Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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After the analysis of the specific features, it is now time to focus more in detail on a couple of aspects. Who can be submitted to a DNA investigation, by whom and under which circumstances? 3. DNA investigations: subjects and thresholds The Code of Criminal Procedure and the DNA Testing (Convicted Persons) Act prescribe exactly in which cases DNA may be used for investigation purposes. In the early years of DNA investigations in criminal proceedings, the investigation primarily focused on the suspect. The rationale for this rule could be found in the Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES consideration that a balance had to be found between the preservation of a safe society, on the one hand, and the protection of human rights (the inviolability of the human body/physical integrity and the right to privacy), on the other. Viewed from this perspective, it was also considered inconceivable that DNA samples from the whole Dutch population could be taken as a preventive measure in order to have a nationwide network of DNA samples to make the detection of suspects of criminal offences easier. In Dutch legislation, this is still not possible, although the discussion in politics about this issue has been more prominently present in recent years. Although the above-mentioned rationale can still be considered to be applicable in Dutch legislation, the range of purposes for which DNA may be used is now much wider. The use of DNA for criminal law investigations must always be based on a formal legal source, however. The first threshold for the use of DNA material for investigation purposes in criminal proceedings is always the existence of a suspicion that a crime has been committed (in case of a convicted person, however, this person has already been convicted of the crime he has committed and, consequently, a ‘suspicion’ is no longer relevant). The taking of DNA samples with a preventive or proactive objective is not permitted. The existence of a suspicion (or a suspect or a convicted person) is a necessary condition in order to carry out a DNA investigation. Furthermore, a DNA investigation may only be carried out in relation to the DNA of specific persons listed in the law. The categories of persons and the requirements that ought to be fulfilled in every case are listed below. • A suspect in a criminal case This might be called the ‘classic’ case of a DNA investigation. The public prosecutor can order an expert to conduct this type of DNA investigation, which is aimed at comparing two DNA profiles (in general the DNA profile of the suspect is compared with the profiles stored in the DNA database). In order to minimize any possible violation of the suspect’s rights (most importantly the suspect’s physical integrity), DNA samples will only be taken with the suspect’s permission. According to article 151a CCP this permission should be in writing. The suspect Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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has the right to consult a lawyer before deciding to give his permission (art. 2 para. 1 DNA Decree) and the suspect decides which type of cell material will be taken from him for use in the DNA investigation (art. 3 DNA Decree). Taking DNA samples from suspects without their consent can only be done in the case of serious suspicions: a person must be suspected of having committed a crime mentioned in art. 67 section 1 CCP (offences carrying a statutory maximum prison sentence of at least four years and certain other specific offences). If it is in the interest of the investigation, the order can be given that DNA material will be

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES taken from the suspect without his permission (art.151b CCP). • Unknown suspect in a criminal case In case the suspect is unknown, the public prosecutor or a police officer with a judicial function may order a DNA investigation aimed at comparing DNA profiles to be carried out on material found at the scene of a crime (‘offender-related trace material’) (art.151a CCP). The public prosecutor can also order a DNA investigation aimed at determining observable personal features of the unknown suspect. This investigation may only be aimed at the determination of the sex, race or other observable personal features as determined by a decree (art. 151d CCP). • A known person who is not a suspect in a criminal case According to art.151a CCP the public prosecutor can order an expert to conduct a DNA investigation in order to compare DNA profiles, using the DNA material of a person against whom no suspicions have arisen. The DNA material of this person can only be taken with his permission, which has to be in writing. The purpose of this investigation is the interest of the criminal investigation. The requirements for this type of DNA investigation are the same as the requirements for the suspect who has given permission as mentioned above. • A convicted person For the purpose of DNA profiling and processing the public prosecutor orders the DNA material of a person who has committed a crime, as mentioned in art. 67 par. 1 CCP, to be taken, unless the DNA profile of the convicted person has already been made and processed or when it is plausible that the profiling and processing of the DNA material, in the light of the nature of the crime or the circumstances of the case, will not be of importance for the prevention, investigation, and prosecution of offences or the administration of justice (art. 2 par.1 of the DNA Testing (Convicted Persons) Act). If, in the opinion of the public prosecutor, weighty reasons oppose the taking of DNA material from a convicted person, other DNA material from the convicted person may be used for DNA profiling and processing (art. 2 par. 1 of the DNA Testing (Convicted Persons) Act). Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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• Kinship investigation This type of DNA investigation is aimed at finding a kinship relationship between certain people, which might lead to the conclusion that a relative of the person(s) who’s DNA has been used for a DNA investigation might possibly be the offender. The investigation might be carried out actively or passively, meaning that investigators may perform DNA investigations aimed at discovering whether a kinship relationship exists, but may also coincidentally find a kinship relationship while carrying out a different type of DNA investigation. The results of the latter

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES may also be used in the investigation. According to art.151da CCP a kinship investigation may only be conducted in the interest of the investigation and after an order by the public prosecutor. In case this investigation will be carried out using DNA data that has already been processed, the examining judge must grant authorization. If DNA material will be used that has not yet been processed, permission in writing from this person is required. A kinship investigation may only be carried out in case of a suspicion of an offence carrying a statutory maximum prison sentence of at least 8 years or in case of certain other serious crimes (such as communal street violence and vandalism resulting in bodily harm). • An unknown deceased • victim Before the recent amendment to the Code of Criminal Procedure only a DNA investigation to determine observable personal features of an unknown suspect was possible. With the coming into force of the amendment to the Code of Criminal Procedure, this will add the words ‘unknown victim’ to art. 138 CCP and so a DNA investigation may also be aimed at determining observable personal features (sex, race or other observable personal features as laid down by a decree) of an unidentified victim (art.151d CCP). 4. DNA Storage (the DNA database) and specific aspects of data protection DNA profiles will be stored in the DNA database of the NFI. The term ‘database’ in Dutch legislation concerns the collection of autosomal STR profiles that are stored in this database.16 Article 14 of the DNA Decree consists of rules concerning the preservation of DNA stains in the DNA database. Section 1 reads as follows: ‘there is a DNA database for criminal cases with the aim to prevent, detect, prosecute or adjudicate criminal offences’. Thus, prevention is one of the aims pursued with the DNA database. According to section 2, the Minister of Justice is responsible for the DNA database. The Secretary-General of the Dutch Forensic Institute (NFI) administers the DNA database. The Dutch DNA database consists of DNA stains from suspects (which have to be removed if no conviction follows in a

16 De Knijff 2004, p. 39-49. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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criminal trial), convicted persons, formerly convicted persons, deceased victims and stains that have been detected at a crime scene (section 3). Complete DNA profiles, as well as partial DNA profiles and mixing profiles, are stored in the database.17 With the forthcoming legislation it will also be possible to store the DNA profiles of persons who are missing, if it is suspected that they have been the victims of a serious crime (a crime mentioned in art. 67 CCP). This has been made in order to make it easier to find missing persons. It has also become possible for the Secretary-General of the NFI to compare different DNA profiles in

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES order to prevent, detect, prosecute or adjudicate criminal offences. Previously, it was not possible to do this with the DNA profiles of missing persons, non- suspects and deceased victims. Now, this has been made possible in order to determine if the unknown profile possibly matches a victim’s or a deceased person’s profile (section 6). Moreover,, there will no longer be any violation of human rights (mainly privacy) as the person involved is often deceased. One exception is mentioned (if the missing person appears to be alive and his profile matches the profile of the unknown suspect) but this is thought to be justified by mentioning the fact that carrying out this investigation will help to advance criminal proceedings. Apart from that, it will also help missing persons not to be r missing any longer, which would be in their best interest. We find that this argument is slightly peculiar as, of course, some missing persons do not want to be found. Finally, a new section 7 has introduced the possibility for the Secretary-General of the NFI to compare the DNA profiles of unidentified, deceased persons with the DNA profiles of suspects and (formerly) convicted persons in the DNA database. The aim of this rule is to identify unknown, deceased persons. This power cannot however be used in order to solve crimes, as is explicitly stated in the Explanatory Notes.18 Article 15 determines which persons can access the information stored in the database. These persons mainly concern officials/employees of the NFI. According to section 2, the NFI can only provide information, emanating from the database, to (a) public prosecutors, (b) judges, (c) police officials, (d) the National Police Corps and (e) the Judicial Information Service. Section 3 determines which information is to be given to the persons mentioned in section 2 under c. It concerns the name of the person whose DNA profile is stored in the database, as well as his date of birth, the place and country of his birth or, if this information is unknown, other information on the basis of which the identity of the person can be determined. Sections 4 and 5 also include the conditions under which DNA

17 http://forensischinstituut.nl/dna-databank/dna-databank/. 18 Nota van Toelichting bij het Besluit houdende wijziging van het Besluit DNA-onderzoek in strafzaken en het Besluit Politiegegevens, Stb. 2012, 82. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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information can be given to the persons mentioned under section 2 (d) and (e). According to section 6, data are only given when they are requested in writing, except for the provision of data for the National Police Corps, which occurs automatically. The personal records of the person responsible for the DNA stain in the database are not mentioned in the database itself. DNA profiles are recorded in numbers and letters and are given an identity seal. With the help of this seal, employees at the NFI can match the right person with the right profile. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES Articles 16 and 17 contain rules concerning the removal of DNA profiles from the DNA database. Art. 16 (1) provides for the possibility that a suspect is no longer a suspect in a crime mentioned in article 67 CCP. The Judicial Information Service has to inform the NFI about this. As soon as the NFI has received this information, the DNA profile of the former suspect has to be removed from the DNA database (art. 17(1)). Not only should the DNA profile be removed, but also the cellular material which would have provided for the profile and the data concerning the DNA profile have to be destroyed. The DNA profile can only be preserved when the DNA profile of this former suspect matches the DNA profile of an unknown suspect in a criminal case under article 67 CCP. Article 18 consists of general provisions concerning the determination of storage terms for DNA profiles. To summarize: the following retention periods apply to the different categories of persons: - According to section 1, the NFI has to destroy the DNA profile of a suspect or a convicted person, (a) twenty years after the final decision of the judge as mentioned in arts. 351 and 352 (2) CCP, concerning a crime for which detention for less than six years is possible or twelve years after the person concerned has died, (b) thirty years after a final decision under Articles 351 and 352 (2) CCP, if it concerns a crime for which detention for more than six years is possible, or twenty years after the person concerned has died and (c) after the expiry of the right to prosecute. - If a person has been convicted and sentenced to more than 20 years imprisonment, the DNA profile will be preserved for 50 years. If a person has been convicted and sentenced to life imprisonment, his DNA profile will be preserved for 80 years (section 3). - DNA profiles of suspects or persons convicted of sexual offences (art. 240b-250 CP) will be preserved for 80 years (section 4). - DNA profiles of formerly convicted persons will be destroyed if such a person no longer consents to his DNA profile being stored (section 5). - DNA profiles of deceased victims will be destroyed (a) after twenty years if it concerned a crime for which 6 years imprisonment or more is possible (b) after twelve years if it concerns a crime under art. 67 CCP for which a maximum prison Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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sentence of six years is possible (section 6). However, if the victim has died as a result of a crime that can be punished with life imprisonment, the DNA profile will be retained for 80 years (section 7). The same will occur with the DNA profile of an unknown suspect. The DNA profiles of people cooperating in large-scale DNA inquiry will not be stored in the database. Those profiles will be destroyed as soon as it becomes clear that they do not match the DNA profile concerned. The cellular material that has been used in order to make a DNA profile has to be Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES destroyed at the same time as the DNA profiles. 5. DNA as evidence in court The Dutch CCP exhaustively enumerates the sources that can serve as evidence in court (articles 338-344a CCP). DNA evidence will be part of the ‘written documents’ (schriftelijke bescheiden) mentioned in section 344 CCP. Another possibility is that an expert witness testifies about the DNA evidence in court. In that case, section 343 CCP is applicable. The Dutch Research and Documentation Centre has carried out research in order to investigate how judges experience DNA evidence as proof in court. The opinions of judges as to the probative value of DNA tend to differ.19 Some only want to use DNA as supporting evidence, whereas others are prepared to base a conviction almost entirely on DNA evidence. Lawyers are generally quietly pleased with the way DNA is used as evidence. There have however been, as mentioned in the introduction, some serious cases of miscarriages of justice in the last couple of years, caused by an incorrect interpretation of DNA evidence.20 In one of these miscarriages of justice, the ‘Schiedammer Parkmoord’ case, a man was wrongly convicted of murdering a girl. He confessed to the crime, but it turned out that this confession had been obtained by the police by using duress. Moreover: the DNA that was found on the body of the girl did not match the DNA of the convicted man. This fact had been ignored by the prosecutor as well as the court. This case has led to the installation of a commission (the Posthumus Commission) that has investigated what went wrong in the Schiedammer Parkmoord case and how to prevent such judicial errors. In the final report by this commission several recommendations are made in order to improve the process of truth finding in court. Special attention is paid to the probative value of DNA evidence, also in other scientific articles that have been published after different miscarriages of justice. One of the things that

19 Jacobs & Bruinsma 2008. 20 Examples are to be found in HR 22 februari 2005, LJN AR5714 (Deventer Moordzaak); HR 25 januari 2005, LJN AS1872 (Schiedammer Parkmoord); HR 26 juni 2001, LJN AA9800 (Puttense Moordzaak). Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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is often mentioned is the fact that once a DNA sample from the crime scene matches the DNA of a suspect, it is too often assumed that the suspect is indeed the offender. This is a dangerous conclusion: the DNA sample does not necessarily have to end up at the crime scene as a result of committing the offence in question. 6. DNA and the protection of human rights? In the Netherlands there is no constitutional court and the Dutch Constitution contains r no provisions concerning a fair trial and outdated provision concerning Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES privacy. On the other hand, the European Convention on Human Rights (ECHR) is the law of the land, thanks to the Dutch Constitution, that does provide for those protections, per a monist system. There are two fundamental rights that might conflict with the DNA legislation in the Netherlands: the right to a fair trial (art. 6 ECHR) and the right to privacy (art. 8 ECHR). Several rights that can be deduced from article 6 ECHR can clash with the way in which the Dutch DNA legislation is organized. Equality of arms, to start with, is not entirely realized in Dutch criminal proceedings. There is a right for the defence to make use of a counter-investigation if it does not agree with the outcome of the DNA investigation (section 151a lid 4 and 195b lid 1 CCP). This right, however, is fairly limited: the defence has to request the prosecutor or the investigating judge to order a second investigation. If the request is refused (because there is not enough cellular material available), there are no remedies against this decision. The nemo tenetur principle also plays an important role in DNA investigations. The ECtHR has made it clear in Saunders vs. United Kingdom that the taking of a DNA sample from a suspect is allowed as it concerns material that has an existence independent from the will of the suspect. Finally, the presumptio innocentiae might be in trouble, now that DNA profiles can be stored and used in order to find matches with DNA material that has been retained from old crimes. Without any knowledge that the individual is involved in a particular offence, but only because he has committed an offence in the past, his DNA can be compared to the new DNA sample.21 Article 8 ECHR (the right to privacy) is closely related to the above-mentioned retention of DNA samples in the Dutch DNA database. In Van der Velden vs. The Netherlands, the ECtHR found that both the obtaining of cellular material by way of taking a mouth swab and the retention of that material as well as the determination of a DNA profile constitutes an interference with the right to respect for private life (see Van der Velden vs. the Netherlands (no. 29514/05, 7 December 2006). This interference can however be justified: if the compilation

21 Zuidwijk 2003, p. 267-275. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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and retention of a DNA profile served the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. Furthermore, the Court considers that measures such as the measure complained about can be said to be "necessary in a democratic society". In its Van der Velden decision the Court already pointed to the substantial contribution which DNA records have made to law enforcement in recent years, and noted that while the interference at issue was relatively slight, the applicant might also reap a certain benefit from the inclusion of his DNA profile in the national database in that it allowed for a rapid

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES elimination of the applicant as a possible suspect of a particular crime in the investigation of which material containing DNA had been found. In the case of W. v. the Netherlands the court found that the considerations mentioned above equally apply (see W. v. the Netherlands 20-01-2009, appl. no. 20689/08). The court noted that, unlike in the case of S. and Marper vs. the United Kingdom, this case dealt with the issue of the storing and retaining of DNA records of persons who have been convicted of a criminal offence. Also, DNA material can only be taken from persons convicted of an offence of a certain gravity, and DNA records can only be retained for a prescribed period of time, which depends on the length of the statutory maximum sentence that can be imposed for the offence that has been committed. The Court was therefore satisfied that the provisions of the Act contain appropriate safeguards against a blanket and indiscriminate retention of DNA records. Considering, moreover, that the DNA material is stored anonymously and encoded, and that the applicant will only be confronted with his stored DNA record if he has previously committed another criminal offence or commits one in the future, the Court saw no reason to diverge from its findings in Van der Velden on account of the mere fact that the applicant was a minor (see the judgment). It therefore seems that the Dutch legislation concerning the retention of DNA material is in accordance with article 8 ECHR. 7. The exchange of DNA information in the EU. On 27 May 2005 the Treaty of Prüm (the Prüm Convention) was signed by Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Spain in the town of Prüm in Germany. In the following years Finland, Portugal, Italy, Slovenia, Sweden, Bulgaria, the Czech Republic, Greece, Romania and Hungary have joined the Treaty as well. In 2008 the Treaty was ratified by the Netherlands. In the same year the Treaty of Prüm was incorporated in the European Union legal framework by two decisions of the Council.22 The members of the European Union, including those that have not signed the Treaty of Prüm, have to incorporate these decisions of the Council into their own legal frameworks before 27 August 2011.

22 2008/615/JBZ and 2008/616/JBZ. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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The main aim of the Treaty is to enable its members to exchange data regarding DNA, fingerprints and the vehicle registrations of the persons concerned and to cooperate in the fight against terrorism. For the purpose of this paper, only the rules governing DNA will be discussed. According to the Treaty of Prüm its members have the right to compare fully automated DNA profiles present in their databases with the DNA profiles in the databases of the other members. Article 6 of the Treaty stipulates that the member states appoint a national contact point for this purpose. On 10 December

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES 2007 the Netherlands made some changes in its DNA Decree.23 Article 15 of the DNA Decree now enables the members of a national contact point as mentioned in article 6 of the Treaty of Prüm to have access to the Dutch DNA database. In order to be able to compare DNA profiles, these profiles should be compiled in the same way. Therefore resolution 2001/C 187/01 of the Council of the European Union encourages member states to use the so-called European Standard Set (ESS) when making a DNA profile. Very serious technical problems remain as the European countries do not work with the same standards and do not even use the same quantity of DNA markers, which makes comparing profiles technically difficult. It should be clarified that an EU Prüm DNA database does not exist. The whole system is based on linking national DNA databases to each other. There is also no way of automatic access. In fact the system is based on a two-step procedure. The first step in the procedure is the comparing of DNA profiles between two countries (no European-wide comparison is possible). Not every DNA profile present in a DNA database is compared to the DNA profiles in the DNA databases of other countries. The DNA profile first has to meet the so-called ‘inclusion rules’.24 These ‘inclusion rules’ make sure that a comparison is useful and reliable. The ‘inclusion rules’ include a rule that determines how many DNA features a DNA profile should consist of. The ‘inclusion rules’ also state that ‘mixed’ DNA profiles and DNA profiles of traces that have already been matched may not be used in the process of comparing. DNA profiles are compared on a hit/no-hit basis. Once a match has been found, the second step in the procedure can be activated; this means that only if a match has been found between two DNA profiles will the data concerning this matching DNA profile be shared with the ‘comparing’ country. In order for another country to share information about the DNA profile, the ‘comparing’ country should, by using the code given to the specific DNA profile, request the other country to share the data. This is not an

23 Besluit van 10 december 2007, houdende wijziging van het Besluit DNA-onderzoek in strafzaken, Stb. 2007, 512, p. 8 e.v. 24 These ‘inclusion rules’ can be found in 2008/616/JBZ. Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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automated process and is completely regulated by national law. In the Netherlands information concerning DNA is considered to be judicial information. For this reason DNA data requests from other countries are being treated as international requests for mutual legal assistance (MLA letters rogatory) and are not handled by police authorities but by judicial authorities. In 2012 under the EU decision all Member States should have implemented its contents. However, as it stands several Member States have not yet provided for a DNA database or have very few profiles in it, or have ongoing problems with

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES technical features and/or applicable data protection standards. This is the reason why the Prüm scheme actually only functions effectively between 11 Member States 8. Brief conclusion The Netherlands was a pioneer in the 1980s and 1990s in the field of using DNA in criminal proceedings and remains so today. The new legislative package of 2011-2012 is a clear example of active legislation in this field. The legislator has also drawn clear lines as to the legality and conceptual design of the DNA investigation. The scope has been widened (purpose, subjects), but DNA is still considered to belong to the privacy of persons, which means that a DNA investigation and the use thereof is an interference with the fundamental right to privacy. For this reason DNA data are considered to be judicial data, which can only be stored in one single database, under the control of the prosecutor’s office. The Dutch legislator has clearly forbidden the setting up of DNA databases at the level of the police. DNA samples and profiles are gathered and stored in order to be used for comparing and identifying those suspected of having committed offences. Also here the Dutch legislator has shown a clear preference for taking physical samples from certain persons (with or without consent), as opposed to the taking of samples from the scene of the offence. DNA data are judicial data. Although the judicial purpose has been widened (in the interest of criminal investigations), it limits the conceptual design to the investigation and prosecution of offences. The Dutch legislator has not included in DNA investigations the new proactive judicial investigation of terrorism, which means that a DNA investigation has to meet the threshold of a suspicion of an offence. Finally, the exchange and comparison of DNA profiles is a field of growing scholarly and practical interest. The Prüm acquis is interesting in this respect, but a lot remains to be done. Not only technical problems remain an obstacle, but also different legal cultures concerning data protection and the legal character of DNA data (the police model and the judicial model).

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Bibliography Blakesley 1998, La Preuve Pénale et des Tests Génétiques, International Academy of Comparative Law & American Journal of Comparative Law 46 AM. J. COMP. L. 605 (Supp. 1998). Jacobs & Bruinsma 2008, M.J.G. Jacobs & M.Y. Bruinsma, Sporen met DNA. Evaluatie van de wijziging van de regeling van het DNA-onderzoek in strafzaken per november 2001, Tilburg: WODC en IVA Tilburg 2008. De Knijff 2004, P. de Knijff, ‘Bewijsvoering op basis van DNA-profielen en – Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES databases’, Forensische Expertise, 2004, jaargang 30, nr. 1, p. 39-49. De Poot en Kruisbergen 2006, De Poot en Kruisbergen, DNA-onderzoek als instrument in de opsporing, Den-Haag: WODC 2006. Zuidwijk 2007, S. Zuidwijk, ‘DNA-onderzoek in strafzaken, een almaar voortrazende trein’, TREMA, september 2003, nr. 7, p. 267-275. Kamerstukken, Kamerstukken II 1999-2000, 26 271, nr. 6. Kamerstukken I 2000-2001, 26 271, nr. 210b. Kamerstukken II 2000-2001, 27 400 VI, nr. 49. Kamerstukken II, 2009-2010, 32 168, nr. 3. Websites - http://forensischinstituut.nl/dna-databank/dna-databank/. Statutes - Wet DNA-onderzoek bij veroordeelden, Staatsblad 2007, 513. - Wijziging van het Wetboek van Strafvordering en de Wet DNA-onderzoek bij veroordeelden in verband met de introductie van DNA-verwantschapsonderzoek en DNA-onderzoek naar uiterlijk waarneembare persoonskenmerken van het onbekende slachtoffer en de regeling van enige andere onderwerpen. Staatsblad 2011, 555. - 2008/615/JBZ. - 2008/616/JBZ. - Besluit van 10 december 2007 houdende wijziging van het Besluit DNA- onderzoek in strafzaken, Staatsblad 2007, 512. - Staatsblad 1993, 596. - Staatsblad 2012, 131. Case-law - ECHR 7 December 2006, appl. no. 29514/05 (Van der Velden vs. The Netherlands). Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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- Court of Appeals of Maryland 24 april 2012, no. 68 (Alonzo Jay King jr. vs. State of Maryland). - Dutch Supreme Court, HR 22 Februari 2005, LJN AR5714 (Deventer Moordzaak) - Dutch Supreme Court, HR 25 Januari 2005, LJN AS1872 (Schiedammer Parkmoord) - Dutch Supreme Court, HR 26 June 2001, LJN AA9800 (Puttense Moordzaak).

SUMMARY This article deals with the specific Dutch focus on the gathering and use of DNA in criminal proceedings, as we believe that the developments in the Netherlands are of interest for other countries and regions. An overview is given of the very substantial and recent changes in Dutch DNA legislation in the area of criminal procedure. Attention is paid to the object and purpose of DNA investigations, to the applicable procedural thresholds and to the due process standards. Of particular interest is the circle of persons who can be submitted to DNA sampling and their rights under human rights standards and the storage of DNA profiling. The article also contains an analysis of the European dimension exchanging DNA data under the EU Prüm regime.

RÉSUMÉ Cet article traite de la collecte et de l’usage de l’ADN dans les procédures pénales en soulignant particulièrement les règles applicables au Pays-Bas en raison de l’intérêt que portent certains pays ou régions pour ces règles. Cet article donne un aperçu des changements substantiels intervenus récemment au sein de la législation néerlandaise dans ce domaine. Une attention particulière est portée à l’objet ainsi qu’aux finalités des investigations relatives à la preuve ADN, à la procédure applicable (celle-ci prévoyant plusieurs paliers en termes d’intensité d’investigations) ainsi qu’aux règles de la légalité procédurale. Une attention particulière est également portée à l’identification des groupes de personnes pouvant faire l’objet de prélèvements ADN ainsi qu’aux droits dont ils bénéficient et qui sont garantis par les principes des droits de l’homme et le fichage des profils ADN. Enfin, cet article contient une analyse relative à la dimension européenne dans l’échange des données ADN conformément au régime européen Prüm.

RESUMEN Este artículo examina el enfoque específico holandés sobre la recopilación y el uso de ADN en el proceso penal, ya que creemos que la evolución de los Países Bajos es de interés para otros países y regiones. Se ofrece una visión general de los muy importantes y recientes cambios en la legislación holandesa sobre el ADN en el ámbito del procedimiento penal. Se presta atención al objeto y finalidad de las investigaciones de ADN, a los umbrales aplicables al procedimiento y a las normas del debido proceso. De Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES

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particular interés es el círculo de personas que pueden ser sometidas a muestreo de ADN y sus derechos de acuerdo con las normas de derechos humanos y el almacenamiento de los perfiles de ADN. El artículo también contiene un análisis de la dimensión europea de intercambio de datos de ADN de acuerdo con el régimen de Prüm de la UE.

Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES Document téléchargé depuis www.cairn.info - University of Utrecht 131.211.104.202 03/05/2019 17h11. © ERES