Portugal

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Overview

The Portuguese DNA database was formally created under legislation passed in 2008. It consists of six different “files”, according to the type of profile: volunteers, unidentified corpses, missing persons and/or their relatives, crime scene stains, persons convicted and sentenced to not less than three years in prison, and professionals who collect and analyse samples. DNA samples can only be collected pursuant to a judicial order.

The Portuguese government announced in 2005 that it wished to put its entire population on a DNA database. However, this plan was abandoned due to concerns about costs and human rights. Law 5/2008 creating Portugal's DNA database was adopted in February 2008. DNA profiles from convicted individuals with a sentence of three years or more, and also from volunteers, relatives of missing persons, professionals who collect and analyse DNA samples and corpses or body parts can be added to the database. Samples from arguidos[1] and convicted offenders can be collected without consent (by force if needed) but suspects' DNA profiles are only added to the database if convicted (sentence of three years or more in prison) and only if ordered by a judge. DNA samples taken from individuals are destroyed immediately after the DNA profile has been obtained. A written form stating free and informed consent is necessary for volunteers, relatives of missing persons and professionals (who collect and analyse samples).

In February 2012, it was announced that the DNA database, for the first time since its creation, successfully contributed to the identification of a suspect in a burglary.[2] There are not yet any official data regarding the number of DNA profiles held in the Portuguese DNA database. In 2013, Portuguese Press reported that 1020 profiles were included in the DNA database. The fact that judges do typically not order the inclusion of DNA profiles of individuals receiving prison sentences of three years or more, apparently due to insufficient information on how the forensic DNA database operates, was reported by the press as the main cause of this delay. The economic crisis currently affecting Portugal may also be a contributing factor.

[1] According to Article 57 of the Código de Processo Penal [Code of Criminal Procedure 2007], arguido [official suspect] is the status of an individual against whom a formal accusation has been made or inquiry procedures instigated. Article 58 states that a person may be made an arguido on the basis of a justifiable suspicion of crime. Arguido status is designed to provide individuals with certain rights, such as knowing the details of charges or the right to remain silent during interrogations and to have a lawyer present at all times, together with obligations that may range from a simple statement of identity and residence to detention on remand, even if no formal accusation has been made and an investigation is still underway.

[2] Source: TVI24. Available on: http://www.tvi24.iol.pt/sociedade/adn-tvi24-crime-base-de-dados-ultimas-noticias/1324637-4071.html

Resources

Detailed Analysis

I. Law on Point

Law No. 5 of February 12, 2008[1]

II. Entry Criteria

The Portuguese National DNA database is made up of six sub-databases. There are sub-databases that include DNA profiles from: volunteers, unidentified corpses, missing persons, crime scene stains, persons convicted and sentenced to not less than three years in prison, police and forensic specialists in the state’s employ.[2] The profiles of convicted persons that match the criteria of being given a sentence of three years or more in prison can only be included in the database if ordered by a judge. Also, any crime scene stains are only included by order of the competent judge (Art. 18(2)).


III. Sample Collection

Samples are collected via buccal swab.[3] In criminal proceedings, sampling is conducted at the arguido’s (official suspect) request or upon judicial order.[4]


IV. Removal Criteria

The DNA profiles of volunteers are kept indefinitely or until permission is revoked. Profiles of unidentified corpses and missing persons are removed from the database when an identification is made. Profiles of relatives of missing persons are removed when identification is obtained or when the relatives request removal of their profiles. A profile derived from an unidentified crime scene stain is removed when it is identified with a defendant, at the end of the proceedings, or when the proceedings meet the limit prescribed by the statute of limitations. Should that defendant subsequently be convicted, it is entered into the convicts database.[5] When profiles derived from unidentified crime scene stains are not identified with a defendant they are removed 20 years after collection. The profiles of persons convicted to three years or more in prison are removed at the time of the cancellation of the judicial decisions in the criminal record (maximum of ten years after the sentence has been served). The profiles of professionals who collect and/or analyse samples are removed 20 years after the termination of professional duties.

V. Sample Retention

Volunteer and convicted offenders' samples are destroyed immediately upon derivation of a DNA profile. Samples taken in a criminal proceeding may only be used as evidence in that proceeding, except if a judge dispenses the collection of another sample in successive or concurrent proceedings within five years from the first sample collection (Art. 8(6)). All other DNA samples are retained for the same period as their corresponding profile.[6]


VI. Database Access

Genetic analysis is performed by the Forensic Science Laboratory of the Judicial Police and the National Institute for Legal Medicine (NILM).[7] With the approval of the Ministry of Justice, other laboratories can be hired to conduct genetic analyses. The NILM, based in Coimbra, is responsible for the operation and maintenance of the DNA database.[8] DNA profiles and any corresponding personal identifying information are stored separately at different physical locations.[9] Only authorised staff have access to the database, limited to the exercise of professional duties. Forensic staff and members of the Supervisory Council of the DNA database are obliged to professional secrecy, even after termination of their duties. The NILMFS provides information, upon request, to the competent judge who communicates information to the police authorities and/or the Public Prosecution. Other requests for information are subjected to appreciation by the data protection authority. Portugal can exchange information with other countries under ratified international agreements.

References

  1. Lei Aprova a criação de uma base de dados de perfis de ADN para fins de identificação civil e criminal [Law Approving the Creation of a Database of DNA Profiles for the Purpose of Civil and Criminal Identification] Law No. 5 of February 12, 2008, Diário da República, 1st Series, No. 30, February 12, 2008 (Port.) (hereinafter Law No. 5 of Feb. 12, 2008).
  2. Law No. 5 of Feb. 12, 2008, Art 15.
  3. Law No. 5 of Feb. 12, 2008, Art. 10
  4. Law No. 5 of Feb. 12, 2008, Art. 8
  5. Law No. 5 of Feb. 12, 2008, Art. 26.
  6. Law No. 5 of Feb. 12, 2008, Art. 34.
  7. Law No. 5 of Feb. 12, 2008, Art. 5(1)
  8. Law No. 5 of Feb. 12, 2008, Art. 16
  9. Art. 15(2)