Difference between revisions of "Belgium"
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Belgium's DNA database was established in 1999.
According to Interpol's 2008 survey Belgium's DNA databases held DNA profiles from 14,000 crime scenes and 14,000 individuals in 2008.
Individuals suspected of crimes carrying a prison sentence of five years or more can have their DNA taken without consent if ordered by a magistrate and if relevant crime scene evidence exists. Only people convicted of serious offences (mainly rape and murder) have their records retained. Individuals' DNA samples are destroyed once the profiles have been obtained.
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The Belgian National DNA database was established in 1999 and contains two databases, each administered by the National Institute for Criminalistics and Criminology. The first of these databases, the “criminalistics” database, contains DNA profiles derived from crime scene stains. The second database, or “convicts” database, contains profiles derived from DNA samples of persons convicted of a “serious offence.” There is no database containing DNA suspects’ DNA profiles. Convicted persons’ profiles are kept for ten years after their death and crime scene stains are removed when no longer considered useful. When the police are unable to identify profiles, they must be removed after thirty years. When the police are able to identify a profile, it must be removed when the underlying criminal proceedings are exhausted. Convicted persons’ profiles are kept for ten years after their death. Convicted persons’ samples must be destroyed once their DNA profile is derived. Suspects’ samples must be destroyed once the prosecutor has determined that their request for independent DNA analysis will not be granted.
I. Law on Point
The Belgian National DNA database was established in 1999 pursuant to the Law of 22 March 1999 Concerning the Identification Procedure by DNA Analysis in Criminal Matters and is subject to the Royal Decree of 4 February 2002. The law of March 22, 1999 created two databases, each administered by the Nationaal Instituut voor Criminalistiek en Criminologie [National Institute for Criminalistics and Criminology] (hereinafter “NICC”). The first of these databases, the “criminalistics” database, contains DNA profiles derived from crime scene stains. Belgian law permits the creation of crime scene stain profiles at the express authorization of the prosecutor. The law also requires that, whenever practicable, forensic technicians gather sufficient trace biological evidence from crime scenes so that any future defendant can subject them to a counter-examination by his or her own expert witness.
The second database, or “convicts” database, contains profiles derived from DNA samples of persons convicted of a “serious offence,” at term defined elsewhere in the law. It is required that convicted persons be informed that their DNR profile has been included in the “convicts” database and, to the extent the law allows, that it will be compared against trace biological evidence in future investigations. Notably, there is no database containing DNA information on persons only suspected of crimes.
II. Entry Criteria
In criminal investigations, unidentified crime scene stains may be collected and submitted for analysis by order of the prosecutor. Belgian law requires the prosecutor to have a reasonable basis for this decision. When Belgian police recover human biological samples from a crime scene in the course of an investigation, they may request a DNA sample from any suspect over the age of eighteen. In such cases, the prosecutor has an affirmative right to inform the suspect of his rights, after which the suspect must voluntarily consent before the police may take a sample of his DNA. In judicial investigations, however, the examining magistrate can compel a suspect to provide a DNA sample in cases where (1) the crime under investigation carries a penalty in excess of five years’ incarceration, (2) human biological samples were recovered from the crime scene in question, and the magistrate has sufficient evidence that the suspect is directly linked to the crime.
III. Sample Collection
In either case, a senior police officer or a doctor must collect the genetic sample. In the case of a buccal swab, only a senior police officer is needed. A sample of blood, however, must be extracted by a doctor. In the event that a magistrate orders an unwilling individual to provide a genetic sample, the police may use all reasonable force to collect said sample by buccal swab. Belgian law prohibits compelling a defendant to submit to the extraction of a blood sample. After taking the sample, the senior police officer or doctor must record the following information for transmittal with the sample to the INCC for analysis: (1) the date and time when the sample was taken; (2) the relevant criminal file number; (3) the name of the prosecutor or magistrate who requested the sample; (4) the full name, date of birth, place of birth, nationality, and sex of the person in question; and (5) the circumstances in which the sample was taken.
IV. Removal Criteria
Convicted persons’ profiles are kept for ten years after their death and crime scene stains are removed when no longer considered useful (an order of public prosecution office is necessary) The office of the public prosecutor can authorize the removal of profiles from the criminalistics database when their storage is no longer useful for future investigations. When the police are unable to identify profiles, they must be removed after thirty years. When the police are able to identify a profile, it must be removed when the underlying criminal proceedings are exhausted. Convicted persons’ profiles are kept for ten years after their death.
V. Sample Retention
Convicted persons’ samples must be destroyed once their DNA profile is derived.  Suspects’ samples must be destroyed once the prosecutor has determined that their request for independent DNA analysis will not be granted or when the result of such request has been communicated to the suspect.
VI. Database Access
When a match is found between a DNA profile that is derived from a crime scene sample and a DNA profile from the database and a positive match is established, the law permits only the public prosecution office and the examining magistrate to be informed about the identity of the person in question. The only people who have access to the information on the database include the manager that is responsible for the database within the NICC, certain other members of the NICC, the public prosecutor and the examining magistrate. They have access to the record number of the criminal file, the name of the magistrate who ordered the establishment of the DNA profile and its file number, details of the laboratory that analyzed the DNA sample, the sex of the person and the code number allocated by the magistrate linking the DNA profile to the person concerned. To ensure that the legally protected privacy measures are being met, an expert of the NICC is entrusted with the task of the implementation and safekeeping of the regulations that are imposed by the Commission for the protection of the privacy.
The DNA data is managed using the CODIS system: SQL Server 2000 (network Windows 2000). The administrative data is managed on Access 97 but will be transferred on SQL Server in the current of this year. The algorithms used are those developed for CODIS (Autoseacher et Searcher). We consider only the perfect matches (high stringency) and the matches pure profile/ complex profile (moderate stringency).
- E.U. 9445/1/06 at 5.
- Law of 22 March 1999, Art. 4, § 1, & Art. 5, § 1.
- Id. at Art. 4, §1.
- Id. at Art. 5, §1.
- See EU Current Practices at 36-37.
- Id. at Art. 4, § 4.
- Id. at Art. 5, § 5.
- Id. at Art. 5, § 2.
- Id. at Art. 2, § 5.
- Id. at Art. 4, § 3.
- Id. at Art 7.