Luxembourg

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Overview

The DNA database for Luxembourg was inaugurated by legislation enacted in August of 2006. The database contains DNA profiles of persons convicted of certain specific offences, persons suspected of any recordable offence and crime scene. The DNA profiles of a crime suspects can be entered into the database when they are suspected of any recordable offence. The DNA profiles of convicted offenders can be entered into the database when they are sentenced to imprisonment for one of the crimes listed in the law. DNA profiles which are derived from unidentified crime scene stains can be entered into the database by order of the prosecutor. Convicted persons’ profiles are kept for ten years after their death, suspects’ profiles are deleted upon their acquittal or ten years after their death, and crime scene stains are retained for thirty years after their entry. A 2008 Interpol survey reports that 30 crime scene DNA profiles and 55 individuals' profiles were held in Luxembourg at the time of the survey. According to Interpol, Luxembourg's DNA database grew to 634 crime scene DNA profiles, plus 851 reference DNA profiles from individuals in 2011.

Resources

Detailed Analysis

I. Law on Point

Law No. 163 of August 25, 2006 on the Procedures for Identification by DNA Fingerprints in Criminal Cases[1],[2]

II. Entry Criteria

Persons convicted of an offence that is listed in law (order of solicitor or examining magistrate is required), persons suspected of any recordable offence (order of solicitor or examining magistrate is required) and crime scene stains only by order of the solicitor, the examining magistrate or a judicial police officer acting by order of one these magistrates[3]

The DNA profiles of a crime suspects can be entered into the database when they are suspected of any recordable offence. However, an order of the prosecutor or the examining magistrate is required.[4] The DNA profiles of convicted offenders can be entered into the database when they are sentenced to imprisonment for one of the crimes listed in the law.[5] The list includes offences like terrorism, murder, the taking of hostages, torture and some forms of theft.[6] This can also only be done by order of the solicitor or the examining magistrate. DNA profiles which are derived from unidentified crime scene stains can be entered into the database by order of the prosecutor, the examining magistrate or a judicial police officer acting by order of one these magistrates.[7]

III. Sample Collection

Only the solicitor and the examining magistrate have the authority to order the taking of a DNA sample from a person in order to create a DNA profile.[8] With regard to unidentified DNA stains that are discovered at a crime scene, this may only be done in the course of a criminal investigation.[9] The taking of a DNA sample from a person is performed by means of a buccal swab, the collection of hair shafts or by blood sampling.[10] When the person concerned consents to the collection of a sample, he may choose by which method the sample is collected.[11] If he refuses to cede a sample, coercive sampling is allowed when there are sufficient indications that he is directly involved in a criminal offence that is punishable by a jail sentence of two years or more.[12] In that case, sampling is performed by either the taking of hair shafts or a buccal swab. If the person concerned has not yet reached the age of fourteen years, written consent of his legal guardian is required in order to collect a sample. Consent of the legal guardian is also required for the taking of a DNA sample from mentally-ill persons.

IV. Removal Criteria

Convicted persons’ profiles are kept for ten years after their death, suspects’ profiles are deleted upon their acquittal or ten years after their death, and crime scene stains are retained for thirty years after their entry[13]

The DNA profiles of crime suspects have to be removed from the database when the person concerned is acquitted or when the prescription term is reached.[14] When the person concerned passes away, his DNA profile must be removed ten years following this occurrence. The DNA profiles of convicted offenders have to be removed from the database ten years after the passing away of the person concerned.[15] The DNA profiles that are derived from unidentified crime scene stains have to be removed from the database thirty years after their entry.

V. Sample Retention

Convicted persons’ samples are destroyed ten years after their death; suspects’ samples are destroyed upon acquittal, ten years after their death, or upon the expiration of the a term prescribed by law[16]

All regulations regarding the entry and removal of DNA profiles are also valid for the DNA samples from which they were derived.[17]

VI. Database Access

Only members of the DNA unit have access to the database. Magistrates have to submit a request for information to this unit. DNA unit members have access to all the information contained in the database. Every action in the database is logged.[18] DNA profile information is exchanged via Interpol, Europol and rogatory letters. Luxemburg has signed and ratified the Convention of Prüm which makes it possible to automatically access the forensic DNA databases of the other contracting parties.

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References

  1. Law No. 163 of August 25, 2006, Recueil de Legislation, September 8, 2006, p. 2984 (lux.)
  2. E.U. 9445/1/06 at 7.
  3. See EU Current Practices at 66.
  4. Law of 25 August 2006 regarding the identification procedure by DNA analysis in penal matters, art. 6.
  5. Id. at Art. 8.
  6. Code of criminal procedure, art. 48-7.
  7. Law of 25 August 2006 regarding the identification procedure by DNA analysis in penal matters, art. 6.
  8. Code of criminal procedure, art. 48-3.
  9. Id. at Art. 48-3.
  10. Id. at Art. 48-4.
  11. Id. at Art. 48-5
  12. Id.
  13. See EU Current Practices at 66-67.
  14. Id. at Art. 7.
  15. Id. at Art. 10.
  16. See EU Current Practices at 67.
  17. See EU Current Practices at 66-67.
  18. See EU Current Practices at 66-67.