Netherlands

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Overview

In the Netherlands, the national DNA database contains genetic profiles from unidentified crime scene stains and persons suspected or convicted of an offence that is punishable by “provisional detention.” The police are not permitted to forcibly collect DNA samples for analysis; a court order from an investigating magistrate is required for coercive sampling. Profiles are removed from the database upon a suspect’s acquittal or the expiration of one hundred years after an offender is convicted.

The 2008 Interpol survey reports that 36,154 crime scene DNA profiles and 59,443 individuals' profiles were held in the Netherlands at the time of the survey. According to Interpol, the Netherland's DNA database grew to 44,672 crime scene DNA profiles, 108,799 reference DNA profiles from individuals, 169 missing persons' DNA profiles, 247 unidentified human remains DNA profiles, plus 367 other DNA profiles in 2011. A DNA database legislation had been adopted at that time.

Resources

Detailed Analysis

I. Law on Point

The national code of criminal proceedings stipulates that by means of a national administrative order the handling of DNA-profiles and organic cell material can be regulated. Article 14 of this Ministerial Decree provides for the legal basis for the DNA database including comparative DNA-testing of suspects, DNA-testing to determine externally visible properties and forensic kinship testing.[1] There is a separate law for the DNA-database inclusion of convicted persons. All practical rules including those of the DNA-database are in the Ministerial Decree See: http://dnadatabank.forensischinstituut.nl/wet_en_regelgeving/dna_de_regels_op_hoofdlijnen/huidige_wet_en_regelgeving/)

.[1]

II. Entry Criteria


Persons convicted or suspected of an offence for which preventative custody is allowed and all crime scene stains[2]

DNA profiles of crime suspects can only be entered into the database when they are suspected of a crime that can lead to provisional detention and by order of an investigation judge or prosecutor.[3] According to the law of 2 February 2005, the creation of DNA profiles from samples taken from convicted offenders is only permitted when they are convicted of a crime that can lead to provisional detention.[4] This provision is retroactively valid for those who were convicted before 2 February 2005 and for those who have not been incarnated yet.[5] There are no conditions for the entry of the DNA profiles that are derived from unidentified crime scene stains.[6]. However if a crime scene stain comes from a crime for which no provisional detention is allowed, the corresponding suspect cannot be forced to take a DNA-test to prove that he is the owner of the stain. However if the suspect is already on the DNA-database, the match can be used (e.g. spitting at a bus-driver) Other DNA-profiles which are included in the Dutch DNA-database are: dead victims of crimes (both identified and unidentified), persons who are missing as a result of a (suspicion of a) crime and convicted persons who already have completed their punishment (on a voluntary basis)


III. Sample Collection


Police officers are allowed to collect all crime scene DNA stains that possibly belong to a criminal offender. However, they are not authorized to order a DNA analysis of these DNA samples. This power only comes to the public prosecution officer and the judge-commissioner.[7] The officer of justice can order the coercive sampling of a crime suspect when there are serious indications that he is involved in an offence that can lead to provisional detention and the DNA-test can contribute to the investigation (which implies that also crime scene traces must be available for comparision).[8] Crime suspects also have the opportunity to voluntary cede a DNA sample.[9] In that case, a written consent has to be signed by the suspect. He has the right to be assisted by an attorney when taking a decision. When the suspect consents, the suspect can choose whether sampling is performed by taking cheek adhesive, blood or hair shafts. Sampling is normally performed by a doctor or a nurse. Upon the suspects’ consent, sampling can also be performed by an investigation officer. In that case, the investigation officer is only allowed to take cheek adhesive or hair shafts. An appeal can be made against the creation of a profile from a sample taken from a convicted person, but not against the collecting itself. The Dutch DNA law does not provide for a different treatment of punishable minors and mentally ill persons.[11]


IV. Removal Criteria


Convicted persons’ profiles are kept for 20, 30, 50 or 80 years depending on the seriousness of the offence and the conviction,

Suspects’ profiles are removed upon their acquittal, and crime scene stains are removed when the custodian has received a notification of the public prosecutors office that they have dealt with the case.[12]

DNA profiles which are derived from unidentified crime scene stains are removed from the database after twelve, twenty or eighty years, depending on the seriousness of the offence.[13] This period can be extended for another twenty or thirty years when the crime suspect or convicted offender is peremptory convicted for another offence.[k1]


V. Sample Retention

Convicted persons’ samples are retained as long as their corresponding DNA-profiles; suspects samples must be destroyed upon their acquittal[16]

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

The DNA DB is managed, on behalf of the Minister of Justice by the Director of the Netherlands Forensic Institute (NFI).[18] who has mandated this to the head of the DNA-database department.


VI. Database Access


Only authorized personnel of the NFI have access rights to the DNA database and the register that contains the matching personal data of the suspects and convicted offenders whose profile is entered into the database. The NFI are only allowed to provide relevant data to judiciary officials, police officials and officials of the Central Judicial Collection Agency in as far as they use it for the tasks that are listed in the law.[19] and to National Contact Points of other EU countries according to the EU Prum Council Decisions. The NFI may only provide case information from the DNA database to police officials when this it is related to an unsolved case. Information related to persons must be limited to the name, birth date, and birth place of the individual. This last restriction also applies to the Central Judicial Collection Agency.[20] The NFI may only provide information to the various authorized persons upon their written request and is obliged to register the identity of the applicant, the nature of the submitted information, and date of the transfer.[21] The Central Judicial Collection Agency is exempted from the obligation to submit a written request. They can consult the information electronically without authorization from the NFI. The CJCA can also authorize judiciary officials and police officials to consult the information electronically. In that case, the CJCA has to register the identity of the applicant and the date of the information transfer. The regulations regarding requests for legal assistance apply to the international exchange of DNA profiles.[23] Written or electronic requests by foreign judicial authorities must therefore be submitted to a Dutch public prosecution officer[1]. The Netherlands have signed and ratified the Convention of Prüm, which was converted into EU-legislation in 2008 and therefore have automatic access to the forensic DNA databases of other EU-countries which are already Prüm-DNA-operational.(see: http://dnadatabank.forensischinstituut.nl/dna_databanken/dna_databank_strafzaken/internationale_vergelijking/#paragraph11).

CODIS is the application implemented by NFI. It was originally built by SAIC but has been modified by Unisys on behalf of FBI. The DB is based on MS SQL-server.

The query algorithms are integrated in the applications. It is possible to configure the number of DNA-characteristics (loci) and matching characteristics (loci). It is also possible to categorize profiles allowing a targeted comparison, such as suspects with traces and with mixed traces. The latest version (7) of CODIS also allows for the creation of and search against pedigrees to facilitate the identification of unidentified human remains and to perform familial searches.

[1] All incoming and outgoing legal requests have to go through one of the International Legal Request Centres in the Netherlands where they are registered in a central system (LURIS) and hence can be monitored


References

[1] http://wetten.overheid.nl/BWBR0012791

[2] http://wetten.overheid.nl/BWBR0001903/TweedeBoek/TitelI/Tweedeafdeeling and http://wetten.overheid.nl/BWBR0001903/TweedeBoek/TitelI/Tweedeafdeeling

[3] Ministerial Decree on Forensic DNA-testing (DNA-besluit), Art. 14(4)(d).

[4] Id., §4, Art. 14(4)(e).

[5] Law on DNA investigation of convicts, Art. 8(1).

[6] Law on DNA investigation in criminal proceedings, §4, Art. 14(4)(e).

[7] Act on criminal proceedings, art. 195a, §1.

[8] Id., art. 151b, §1.

[9] Id., art. 151a, §1.

[10] Law on DNA investigation of convicts, art. 2(1).

[11] See EU Current Practices at 71-72.

[12] See EU Current Practices at 71-72.

[13] Ministerial Decree on Forensic DNA-testing (DNA-besluit),, Art. 18(9).

[14] Id., Art. 18(1).

[15] Id., §4, art. 16(1), 16(2).

[16] See EU Current Practices at 72.

[17] Ministerial Decree on Forensic DNA-testing (DNA-besluit),,, Art. 18(11).

[18] The latter oversees the destruction of DNA-profiles and organic material within the period foreseen by law. He is not responsible however for assessing the lawfulness of the supply of organic (cell) material and the profiles obtained on the basis of that material. This responsibility remains with the authority that ordered the DNA investigation, i.e. public prosecutor or the “juge d’instruction.”

[19] Ministerial Decree on Forensic DNA-testing (DNA-besluit),,,, Art. 15(2)a to e.

[20] Id. at §4, Art. 15(5).

[21] Id. at §4, Art. 15(6) to 7.

[23] See EU Current Practices at 71-72.
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