ARGUIDO OR NO: THE PORTUGUESE DNA DATABASE
By Helena Machado
In Portugal, as in most European continental judicial systems, judges play a prominent and active role in the examination process and in imposing the rules of DNA evidence and court procedures. This inquisitorial orientation of the Portuguese criminal justice system is also reflected in the DNA database law, as the collection of samples for criminal investigation purposes and the inclusion of DNA profiles in the database requires a judge’s order. Collection of a biological sample can also be carried out at the request of the official suspect (arguido-that is, according to the Portuguese Penal Process Code, an individual against whom a formal accusation or inquiry has been brought).
Law 5/2008, published on 12 February 2008, which approved the creation of a DNA profile database in Portugal, combines separate purposes within the same law, namely civil identification and criminal investigation. The custodian of the DNA database is the Ministry of Justice, while the National Institute of Legal Medicine (NILM) is the institution responsible for processing the data it contains and for communicating the results of analyses to the competent judicial authorities. All the activities developed by the NILM are supervised and controlled by an independent Supervisory Body (Conselho de Fiscalização) with powers of authority, nominated by the Portuguese Parliament.
The Portuguese National DNA database can include DNA profiles from: volunteers, unidentified corpses (for civil identification purposes), missing persons or their relatives, crime scene stains, persons convicted to not less than three years in prison, and laboratory and crime scene personnel who collect and analyze samples.
Profiles are eliminated from the DNA database in certain situations. For example, profiles derived from crime scene samples that do not match the profile of the accused are eliminated 20 years after collection of the respective samples, and profiles from convicted offenders are eliminated at the time of the definitive cancellation of criminal records, a maximum of 10 years after the sentence has been served. All profiles derived from unidentified crime scene stains must be removed 20 years after collection.
Consent and ethnicity
The law states that free, informed and written consent is required in order to collect a biological sample from volunteers, relatives of missing persons and professionals who work in sample collection and analysis. Samples from official suspects and convicted offenders can be collected without consent by decision of a judge.
Furthermore, the identification and collection form, in all its versions (for volunteers, people involved in civil identification procedures, convicted individuals and official suspects and forensic professionals), requires the identification of the individuals’ ethnic group, as well as the ethnic group of the mother and father. Being based on self-classifications or visual assessments made by the forensic personnel, ethnic categories might not correspond to ethnic classifications used in population genetics and are rarely applied to some groups, even by the individuals themselves, with any consistency. The inclusion of the ethnic group category in the information collected from individuals whose DNA profiles will be added to the database contradicts a trend that has prevailed until now in Portuguese legislation regarding the prevention of discrimination which has been evident, for example, in the fact that crime statistics only record nationality, not ethnicity or phenotype.
Current status of the DNA database
There is not yet any official data regarding the number of samples and DNA profiles held by the NILM. In early January 2011, the press announced that less than 100 profiles were included in the DNA database. Apparent causes for this modest growth were associated to the restrictive nature of the legislation and financial costs of constructing the DNA database. The fact that a judge has to issue an order for the entry of the profile of an individual (receiving a sentence of three years or more) in the database, according to the press news, has been causing many profiles to be destroyed because judges are not ordering their inclusion, apparently due to still insufficient information on how the forensic DNA database operates and because of the financial crisis that is presently affecting the Portuguese courts.
The high costs associated with DNA analysis when compared to other European countries have also been a matter of concern regarding the development of the Portuguese DNA database. Prices were stipulated by the Ministry of Justice and depending on the degree of complexity of the analysis-which is used as a step to increment costs, but is not properly defined-a DNA analysis for the purpose of inclusion in the database can cost between 204€ and 714€ ($278 and $973) per sample.
There is also the matter regarding the databases maintained by the Polícia Judiciária (the criminal investigation police). Unlike the Spanish case, which made arrangements in the law that regulates the functioning of police databases to include and centralize information from already existing databases in the autonomous regions, the Portuguese law did not mention the fate of the samples and profiles collected by the criminal investigation police until the DNA database was created.
The Portuguese criminal investigation police have files that contain fingerprints collected from suspects and convicted individuals, as well as biological samples and DNA profiles, but this information has not yet been legalized. There are no official numbers about the size, sort of data or any other details about police databases. Nevertheless, in January 2011 some Portuguese newspapers announced that the laboratory of the criminal investigation police held about 2,000 DNA profiles collected from crime scenes, suspects and convicted individuals.
The Portuguese Data Protection Authority (Comissão Nacional de Protecção de Dados, or CNPD) has recently announced that the police records contain information that violates the law on personal data, namely files with data regarding ethnicity, behavior in private life, religion, and political and trade union affiliation. Negotiations are now being made between the criminal investigation police and the Supervisory Board (Conselho de Fiscalização) that controls all the activities related to the forensic DNA database, to decide if and how those profiles held by the police will be uploaded in the national database, although the police initially argued that there were technical problems that would prevent the transfer of data.
Hence, even if the information and genetic material was to be included in the central DNA database, there are no legal guarantees regarding the circumstances in which the material was collected and there was no supervising authority in place at the time in order to monitor these activities. Data from a study conducted among Portuguese prisoners suggests that the collection of samples could have been made with the use of violence.
Helena Machado is Associate Professor in the Department of Sociology at the University of Minho (Portugal) and an expert in the field of the sociology of forensic genetics.
Acknowledgments: The author is grateful to Filipe Santos for editing support and collaboration in collecting press news about the Portuguese forensic DNA database.
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- The research for this article was supported by the Foundation for Science and Technology (Portuguese Ministry of Education and Science) through a post-doctoral fellowship (SFRH/BPD/34143/2006) and the project “Forensic DNA databasing in Portugal: Contemporary issues in ethics, practices and policy” (FCOMP-01-0124-FEDER-009231).