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Panama is currently working to implement a DNA database.
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Law No. 80 of 23 November 1998
Panama is presently working to implement a national DNA database under the auspices of the Institute of Legal Medicine and Forensic Science (El Instituto de Medicina Legal y Ciencias Forenses) (hereinafter “IML”). The IML, originally known simply as the Coroner’s Office, was established in 1942 under the auspices of the Ministry of Justice. 2009 Management Report at 5. In 1973 the office was transferred to the authority of the Attorney General. Id. Shortly thereafter in 1984 it was reorganized as the Institute of Legal Medicine as an agency of Panama’s Public Ministry. Id.
In 1998, Panama enacted Law No. 80 of Nov. 23, 1998, which nominally established a national DNA database. In doing so, Panama became only the seventh country in the world to enact forensic DNA legislation. In addition, Law No. 80 also set out the basic operating procedures applicable to the database. In doing so, it stuck an odd balance between expansive government authority and a genuine sensitivity to the privacy implications of genetic technology. On the one hand, Law No. 80 authorizes Panamanian courts and prosecutors to compel the taking of DNA samples in certain enumerated circumstances, such as when making an application for Panamanian citizenship, attempting to purchase a firearm, or being subject to arrest for certain crimes. Specifically, it purports to require that the government collect DNA samples (1) when an individual is arrested for a crime in which there is genetic evidence against which a comparison can be made; (2) any individual presently incarcerated; (3) to determine familial relationship upon petition to the court; (4) from any individual seeking Panamanian citizenship, permanent residency, or a work visa; (6) when there is no other means of identifying a defendant; (7) from members of the armed forces, police, private security agencies, offices of the Institute of Legal Medicine, or any other person involved in criminal investigations; and (8) from individual applying permission to carry firearms.
Additionally, the law provides a “catch-all” provision whereby any “competent authority” that deems it “necessary” in the circumstances to compel a DNA sample from an individual. Law No. 80 provides in relevant part: “Las tomas de muestras biológicas para los objetivos de esta Ley, se recabarán de acuerdo con las siguientes circunstancias y casos: . . . [si] cualquier otra persona de quien, según la naturaleza de la causa o circunstancia en la que se encuentre, previa solicitud de autoridad competente se considere necesario determinar su ADN.” [The biological samples for the purposes of this Act, shall be collected under the following circumstances and cases:. . . [if] any other person who, according to the nature of the cause or circumstance where you are, at the request of competent authority considers necessary to determine their DNA.] Taken together, these provisions of Law No. 80 grant the Panamanian government almost plenary power to collect DNA samples from all manner of its citizens and place their genetic profile on the national database.
On the other hand, Law No. 80 explicitly acknowledges that DNA technology represents a significant threat to privacy, observing that it is “capable of providing more information that is strictly necessary” [“siendo susceptible de suministrar más información de la estrictamente necesaria”]. It goes on to restrict the use of a suspects genetic information to “the essential requirements of each case” [“la exigencia indispensable de cada caso concreto”]. What’s more, in Art. 5, § 5 the law expressly outlaws genetic discrimination in employment or for purposes of insurance. The United States would not adopt similar antidiscrimination legislation for another decade. Nevertheless, these privacy concerns notwithstanding, Law No. 80 fails to take the most basic step in preventing misuse of genetic information: mandating the destruction of all biological samples once DNA profiles have been derived. To the contrary, it specifically contemplates that the IML will retain “the profiles and samples” [“los perfiles y muestras”]. The peculiarities of Law No. 80 aside, without the resources to adequately process these samples, a backlog of thousands of samples quickly accumulated effectively aborting Panama’s nascent DNA database.
Until 2005, the IML played a minor role in criminal investigations, offering expert medical services for both the government and private parties. It was perennially hampered by infrastructure constrains, limited and undertrained staff, and inadequate budgetary support. As part of a government-wide restructuring, the Panamanian legislature passed Law No. 50 of December 13 2006, which provided for IML autonomy from the Public Ministry. Finally, with the passage of Law No. 69 of December 27, 2007, the IML was charged with administering all of the nation’s criminalistics and forensics services. Law No. 69 of Dec. 27, 2007, 25949 [G.O.] 2 (Panama).
As a result of the consolidation of all state forensic activity within the IML, as well as a dramatic increase in funding, the agency expanded to its present size of over six hundred staff. 2009 Management Report at 8-10. With greatly expanded capacity and resources, on March 27, 2007 ILM opened a new DNA processing laboratory at Ciudad del Saber. It is hoped that with this new facility, the IML will finally be able to fulfill the duties ascribed to it in Law No. 80.
- Law No. 80 of 23 November 1998, 23684 [G.O.] 2 (Panama); see also Law No. 50 of 13 December 2006, 25692 [G.O.] 2 (Panama) (granting autonomy to the Panamanian Institute of Legal Medicine and Forensic Science); Law No. 69 of 27 December 2007, 25949 [G.O.] 2 (Panama) (consolidating all forensic and criminalistics activities within the Panamanian Institute of Legal Medicine and Forensic Science).
- Ministerio Público, Instituto de Medicina Legal y Ciencias Forenses, Informe de Gestión: Enero 2005 - Abril 2009 [Management Report: January 2005 - April 2009] 3-4, 26-27 (May 2009) (hereinafter “2009 Management Report”).
- 23684 [G.O.] 2 (Panama) (hereinafter Panamanian Law No. 80)
- Osvaldo Castillo Ugarte, La identificación de criminales a través del ADN [The Identification of Criminals Through DNA ] 59-60 (Dec. 2005) (unpublished thesis, Pontificia Universidad Católica De Chile).
- Panamanian Law No. 80.
- Id. at Art. 6, § 6.
- Id. at Art. 5, § 4.
- Id. at Art. 15 (emphasis added).
- 2009 Management Report at 27.
- 2009 Management Report at 6.
- Id. at 6, 27.
- Law No. 50 of Dec. 13, 2006, 25692 [G.O.] 2 (Panama).
- 2009 Management Report at 26.
- 2009 Management Report at 27-27; Panamanian Law No. 80.