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In 2004, Argentina adopted a resolution which allows a DNA database to record any DNA profile associated with evidence from different crime scenes or clothing of the victims, or made in the course of judicial proceedings by order of the court or the public prosecutor involved. The resolution also allows DNA to be collected from prisoners convicted of sexual or life threatening crimes. However, it is unclear to what extent this resolution has been implemented. In 2011, a new national law was introduced to create a DNA database of all persons convicted of sexual crimes and this was adopted in 2013. Argentina also has a database containing DNA donated voluntarily by families whose children disappeared during the dictatorship.


Detailed analysis

I. Historical Origins of Argentinean DNA Databases

In Argentina in 1976, a civilian government was ousted by the military, and the ensuing eight years of military dictatorship were characterized by state-sponsored terrorism directed against a wide spectrum of citizens, primarily young workers, students, and intellectuals. Suspected activists, and sometimes their friends and relatives, were abducted violently from their homes in the middle of the night, and the victims were confined to clandestine detention centers where they were subjected to torture. Thousands of people were eventually assassinated after variable periods of time, while the military government persistently denied the facts and its own responsibility. The “disappeared” thus became a common concept associated with the repression.<ref name="ftn1">Victor B. Penchaszadeh, Genetic Identification of Children of the Disappeared in Argentina, 52 J. Am. Med. Women’s Ass’n 16, 16, 18 (1997); see also, e.g., Centro de Estudios Legales y Sociales (CELS). El mito de la guerra sucia. Buenos Aires: CELS; 1984; Report on the Situation of Human Rights in Argentina. Washington, DC: Organization of American States; 1978; The Disappeared of Argentina. London: Amnesty International; 1979.</ref>

A number of abducted victims were living with their children when the security forces violently irrupted into their homes. These babies and young children were also abducted, as part of a deliberate policy based on the military’s conviction that “subversives breed subversives” and that they had the “duty of freeing these children from the subversive education” of their parents.<ref name="ftn2">Informaciones. July 1985, p2.</ref> The fate of these children varied according to the circumstances. In some cases they were handed over to neighbors or anonymously left in institutions for abandoned children. But most commonly these infants and young children were kept either as “war booty” by someone within the security forces or handed over to childless couples associated with them.<ref name="ftn3">Nosiglia JE. Botin de guerra. Buenos Aires: Cooperativa Tierra Fertil; 1985.</ref>

In the mid-1980s surviving relatives of abducted children were able to forge alliances with the national Sub-Secretary of Human Rights, the Durand Hospital, and the Province of Buenos Aires’ Ministry of Social Action to facilitate the development of a proposal for a national bank of genetics data. President Alfonsín used the project as the basis for Law 23511.<ref name="ftn4">Michelle D. Bonner, Defining Rights in Democratization: The Argentine Government and Human Rights Organizations 1983-2003, 47 Latin Am. Pol. & Soc’y 55, 62 (2005).</ref> This law, enacted in May of 1987, created the “Banco Nacional de Datos Genéticos” (BNDG) “to organize, operate and preserve a file of genetic data to store genetic information to facilitate the identification and clarification of conflicts related to filiation; to produce reports and technical opinions and to perform genetic expertness at judicial request; and to perform and promote studies and researches related to the matter.”<ref name="ftn5">Boletin Oficial de la Republica Argentina, Jun. 1, 1987.</ref>

Law 23511, as amended by later enactments, remains in force and applies to the identification of persons both in the course of legal proceedings involving issues of parental relations and outside formal legal proceedings. In the course of a legal proceeding to establish parentage, when a claim appears credible or reasonable, genetic tests may be ordered by the court.<ref name="ftn6">International Committee of the Red Cross [ICRC], The Missing: Action to Resolve the Problem of People Unaccounted-For as a Result of Armed Conflict or Internal Violence and to Assist Their Families 30 (2002).</ref> The assessment of the genetic evidence is made by the judge, taking into account the scientific knowledge in the field. No party is obliged to submit to a genetic test, however, failure to do so will be held against him, i.e. it will constitute an element of evidence against his claim. Outside formal court procedures, any blood relative of a child who disappeared or was presumably born in detention has the right to request and obtain the services of the BNDG.<ref name="ftn7">Id.</ref>

II. The Regulation of Forensic DNA Technology in the Criminal Context

In Argentina, the collection of DNA in criminal investigation procedures occurs at two stages. First, DNA may be collected at the enquiry stage, during which, under the direction of a judge, evidence is assembled in relation to the charge and the defense. Secondly DNA may be collected during the criminal prosecution procedure. At this stage there is an opportunity for the parties to challenge, on an equal footing, the DNA evidence already obtained or introduced. In either case, the suspect may be either in custody or at liberty.

Under these conditions, the samples for DNA testing can be collected during any of these two stages, before the end of the court hearing. This will depend on the urgency which is required to obtain the sample. For example, in a case of culpable homicide, if it were necessary to determine if the driver of a car was under the influence of alcohol or not, the sample should be taken as early as possible. However, the suspect has a right to a defense and to the control of the sample.

The High Court of Justice has established that the compulsory taking of blood (whether from minors or adults) for the purpose of obtaining proof in relation to the commission of a crime does not, of itself, violate or infringe the right to refuse to make a statement, including a refusal in relation to collaboration in a matter of proof with prosecution, the right to defense, the right to bodily integrity or privacy (either of the accused or the victim). The High Court of Justice has further decided that these rights are not infringed provided the DNA sample is taken according to the principles of proportionality and reasonableness.<ref name="ftn8">Decisions of 4 November 1995 in Re HG, and of 27 December 1996 in Re Guarino, Mirta Liliana.</ref> Moreover, the High Court has not permitted the compulsory blood sampling of minors who have not been victims of a crime or who have not been involved in any illegal act because this would invade the minor’s privacy, restrain his or her freedom to bodily integrity and would damage his or her physical integrity which is subject to juridical protection.<ref name="ftn9">Decision of 13 November 1990, published in Fallos (collection of the judgments of the High Court of Justice), 313, 1113.</ref>

There are special rules for different groups that deal with clinical examinations in general but not specifically dealing with DNA or other genetic studies. These general clinical examinations may not relate specifically to a DNA test but they can relate generally to the taking of urine and blood. Some medical examinations could extend to DNA analysis which are primarily for the purpose of detecting illness amongst prisoners, military personnel or employees but including those who are going to be married, where there are epidemics or skin grafts. These types of examinations are obligatory. The High Court has confirmed the authority of the Federal Police to conduct examinations and chemical analysis to confirm the good health of their police officers and obligatory testing for AIDS.<ref name="ftn10">Decision of 17 December 1996 in Re BREC Federal Police Argentina.</ref> In addition, Article 5 of Law 23511 dealing with genetic studies for histo-compatibility allows the BNDG, on an authorized demand, to check for DNA matches.

These practices notwithstanding, there is no specific scientific test for DNA matching in criminal procedures in Argentina. Different techniques can be used provided they are explained to and evaluated by the judges giving the court certainty on the actual facts. The DNA test must be carried out by an expert. Each party can propose its own expert and the judges must evaluate the opinions of these experts according to the importance of and the validity of the technique employed.

The taking and use of genetic samples is regulated by multiple laws. As noted above, Article 5 of Law 23511 provides that “without prejudice to other tests conducted by the National DNA Bank, when requested to act to bank genetic samples or to test or establish a consanguinity.” In addition, Law 22990 regulated activities linked to human blood including its components and derivatives and sub-products, notably on the storage and donation of blood without reference to DNA tests.

Generally, admissibility of the DNA test results are under the direction of the judge. During criminal proceedings, it is the judge who orders and supervises the acquisition of DNA evidence subject to the intervention of the parties. There is no rule preventing any party from conducting an independent test and presented the results thereof in a court proceeding. However, the probative value depends on the judicial definition of this test subject to any challenge by the opposing party. Judges in criminal trials frequently favor studies from the BNDG on the basis that it is a state institution.

With respect to tests conducted by independent laboratories, there are general and specific sanctions for the use of samples or results for unauthorized uses. The major sanctions are those imposed for traditional offences under the Penal Code and related laws which are committed in relation to the use of samples or test results. The specific sanctions are contained in Laws 23511 and 22990. Article 9 of Law 23511, which was introduced in 1987, imposes penalties for alteration of the register or reports from the register.<ref name="ftn11">Article 9 of law 23511. Any alteration in the registers or reports are punishable offences of falsification of official records. The author and any other counter-signatory will be culpable.</ref> The offence consists of alteration of the authenticated register or reports. Law 22990 was passed in 1983 and imposes sanctions for any misuse of law of blood, any use for profit of human blood or its derivatives or for any purpose other than that which is authorized.<ref name="ftn12">Article 92 of Law 22990. Those punished may be sentenced to a period of six months’ to two years’ imprisonment including persons in charge of haemotherapy services blood banks, production laboratories for blood derivatives, reagents, diagnostic or serums markers of hematology, when conducting these functions without authorization and legal capacity.</ref> Law 22990 also contains sanctions for unauthorized storage of samples or test results.<ref name="ftn13">Article 91 of Law 22990. A person will be punished with a term of six months’ to five years’ imprisonment and a fine of 10,000 to 500,000 Argentinean pesos, whenever he or she has acted as an intermediary or has obtained a benefit by obtaining, donating, preparing, fractionating, storing, conserving, distributing, supplying, transporting, transfusing, importing or exporting, or deriving any form of profit from human blood, its components and its derivatives outside of the circumstances authorized by this law.</ref>

As presently provided, it is difficult to challenge the results of a DNA test with regard to scientific accuracy. However, the DNA evidence may be challenged from the point of view of the form of the procedure, for example, where the sample was not under the control of the opposing party or where there are doubts about the safeguarding of the samples. There are no special directions made by judges in relation to DNA evidence beyond the general evaluation of evidence. There are only directions in relation to the taking of the samples and the intervention of the parties. Interestingly, in the criminal procedure there are no specific standards of proof applicable to DNA tests. On the other hand, in civil matters a refusal by a defendant to submit to a blood test in an action to establish parentage raises a presumption against him or her.<ref name="ftn14">Article 4 of law 23511. When it is necessary to determine in a lawsuit the pa mirage of a person and the claim appears probable or reasonable, a genetic test may be undertaken, which will be evaluated by the judge taking into account the experiments and the scientific results of the subject. A refusal to subject oneself to the tests and the analyses necessary raises a contrary presumption with the position argued by the person who refuses the test.</ref>

There are no general rules dealing with the destruction or storage of DNA test results. Generally, the judges order the destruction of samples in each case. This occurs generally when the decision has been finally reached in the case. The samples and results of DNA tests are stored in the BNDG.<ref name="ftn15">Article 8 of law 23511. The books and the records of the National DNA Bank will be preserved in a manner to ensure their inviolability is ensured, and under conditions to ensure their integrity.</ref> In addition, tests conducted by other private institutions (such as laboratories or hospitals) may be stored also by those institutions themselves. The reliability of such tests depends on the manner in which the samples are stored and the conditions imposed preventing tampering or alteration.

There are no specific rules dealing with the release of DNA test results. However, there are general rules which prevent the release of stored DNA test results except by authorized government instrumentalities or under approved research projects. Generally, the obligation to preserve the confidentiality of the samples and the test results depend on the general duties of medical doctors to preserve confidentiality and the general law.<ref name="ftn16">Article 11 of Law 17132 of 1967 on the practice of medicine.</ref> Similarly, there are no specific rules about the privacy of DNA test results but the release of such information could constitute a number of offences such as the violation of professional confidentiality or the release of secret information by public officials. These circumstances amount to punishable offences under Articles 156 and 157 of the Penal Code.<ref name="ftn17">Article 156 of the Penal Code. A fine of 1,500 to 90,000 pesos may be imposed, and special forfeiture, if necessary, whenever a person discloses a secret, without proper cause, having knowledge of a secret, disclosure of which may caused damage because it relates to a state, trade, employment, profession or art secret. In addition, Article 137 provides that a public servant may be imprisoned for one month to a maximum imprisonment of two years, and special forfeiture of one to four years, where the public servant discloses facts, files or documents considered secret according to the law.</ref> Moreover, Law 23798 dealing with AIDS, which was passed in 1990, prohibits the identification of persons suffering from that disease by reason of the use of samples obtained under those regulations.<ref name="ftn18">Article 2 of Law 23798. The provisions of this law and its complementary standards will be interpreted, taking into account that, in no case may a person: e) identify a person through cards, registers or stored data, which, for this purpose, have been registered in a codified form.</ref>

III. LASFG and the Model Database Proposal

In an effort to nationalize and modernize the use of Forensic DNA technology in Argentina, the Latin-American Society for Forensic Genetics (LASFG) has submitted a number of proposals to create a centralized DNA database modeled after those in the United States and Europe. <ref name="ftn19">G. Penacino. DNA databases in Criminal Investigation, Judicial Doctrine XX, 32, pp. 1151–1160; La Ley, Buenos Aires, 2004; G. Penacino, Organizing the Argentinean Combined DNA Index System. Progress in Forensic Genetics 11, Elsevier Science, London, 2006.</ref> Although LASFG has submitted over a dozen formal proposals to the Argentine government, no centralized database has been established. While resolution number 415/2004 of the Ministry of Justice nominally created such a database, this resolution has not been implemented.<ref name="ftn20">La Nation article (get proper cite)</ref> The LASFG’s latest proposal is presently under review the Argentinean Government, although no deadline has been set by which it must act.

An underlying premise of the LASFG’s proposal is compliance with relevant international standards. In much Latin America, DNA forensics are voluntarily regulated by the LASFG and the Spanish and Portuguese Speaking Group of the (ISFG). The present LAFSG proposal seeks to establish a National DNA database under the purview of the Ministry of Justice, under the direct control of the National Registry of Recidivism. Under the proposal, two independent DNA databases would be created: (1) “BASE 1” containing the genetic data of individuals sentenced for major offences; and (2) “BASE 2” containing genetic information collected as evidence in unresolved cases.

The model legislation authorizes Argentinean judges to order a comparison between BASE 1 and BASE 2. Individuals that have merely been accused of a crime will not be included in BASE 1. In the case such individuals are subsequently convicted, however, their profile would be included there. The genetic samples obtained from crime scenes in any unsolved criminal case will be added to BASE 2, when ordered by a national or provincial judge. To accomplish this task, the laboratory processing the DNA test will have to forward the genetic pattern to the National Registry of Recidivism, only at the time the Judge demands it.

To promote transparency, the proposed databases would be administered and updated by computer specialists, who will be separate from laboratories that process the DNA. Either official laboratories or from ones from the private sector would be charged with processing DNA. The proposal requires that such laboratories be headed by professionals, licensed by the Ministry of Health of Argentina or equivalent Province level organizations. Presently the Argentinean National Justice (through the Forensic Medical Body) operates an accreditation system for forensic laboratories. It is proposed to empower the Forensic Medical Body to certify all laboratories according to uniform standards based on those promulgated by the international forensic community.<ref name="ftn21">Standards suggested by the international forensic community hold that each forensic laboratory must: (1) have automatic sequencers for variable markers analyses, internationally approved; (2) have separated areas for the extraction of DNA, PCR amplification and automatic sequencing; (3) approve two international quality controls annually, providing the awarded certificates; and (4) be headed by professionals properly certified by the Argentinean Ministry of Health or equivalent provincial level organizations, complying with laws and regulations for basic blood analyses.</ref> The Forensic Medical Body will thus be tasked with ensuring that each laboratory meets these standards.