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DNA and privacy protection through criminal law

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Possibility of introducing Innocence(DNA)Projectsin Croatia
Assist. prof. dr.sc. Marta Dragičević PrtenjačaAssist. prof.dr.sc. Sunčana RoksandićVidlička(Faculty of Law, University of Zagreb, Croatia)
3rd EUROPEAN INNOCENCE NETWORK CONFERENCENovember, 2018
Structure
Legal frameworkGathering/obtainingKeepingLegal basisModelsConclusion
3rd EUROPEAN INNOCENCE NETWORK CONFERENCENovember, 2018
1.Legal framework
Criminal Procedural Act(OG 152/08,76/09, 80/11,91/12, 143/12, 56/13, 145/13, 152/14, 70/17;subsequently:CPA)Art.327a and Art. 501 CPAImprisonment Act(OG 128/99, 55/00, 59/00, 129/00, 59/01, 67/01, 11/02, 190/03, 76/07, 27/08, 83/09, 18/11, 48/11,125/11, 56/13, 150/13;subsequently:IA)Art.174a IACriminal Code(OG 125/11, 144/12, 56/15, 61/15, 101/17; subsequently:CC)Ordinance on the manner of gathering biological material and conducting molecular-genetic analysis (OG 120/14)
3rd EUROPEAN INNOCENCE NETWORK CONFERENCENovember, 2018
2. Gathering /obtaining
from suspectfrom victimanother person (but not her own biological material)at the crime scene (Art. 327. (2) CPA
3rd EUROPEAN INNOCENCE NETWORK CONFERENCENovember, 2018
2. Gathering /obtaining
by the policebythe State Attorney's Officeby theCourt
3rd EUROPEAN INNOCENCE NETWORK CONFERENCENovember, 2018
2. Gathering /obtaining
by the police:from a suspect for criminal offence punishable by prison sentence, can take, without his consent (non-intimate) samples for DNA analysis (molecular genetic analysis) for the purpose of identification (Art 211 (3) CPA)
3rd EUROPEAN INNOCENCE NETWORK CONFERENCENovember, 2018
2. Gathering /obtaining
by the State Attorney's Office:samples of biological material from the defendant(Art. 327 (5)CPA)samples of biological material from the victims and other persons (with written consent-beforesigning the said persons shall be notified of the purpose for which the sample in question will be taken and its use in the performance of molecular genetic analysis) (Art. 327 (6) CPA)by the Court:if the said consent is not given (victims or other persons), the taking of samples of biological material from the said persons and the molecular genetic analysis thereon may be ordered, on the recommendation of the State Attorney, by the court. (Art. 327 (6) CPA)
3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018
2.Gathering /obtaining
Execution of Imprisonment Act:Art. 174(a) – mandatory DNA sample gathering from prisoners serving imprisonment sentencesconsent is not requirednot yet fully applied in practice
3rd EUROPEAN INNOCENCE NETWORK CONFERENCENovember, 2018
3. Keeping
CPA (Art. 327.) allowed:20 years of keeping DNA data obtained before and during criminalproceedings without difference whether there was a conviction or acquittal- Decision of the Constitutional court
3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018
3.Keeping
Croatian Constitutional Court Decision(I-448/09, 19/7/2012)CPA violates rule of law in connection with right to privacy because:1. CPA does not differentiate personal data obtained through DNA analysis from personal data obtained in other ways2. CPA allows 20 years of keeping DNA data obtained before and during criminal proceedings without difference whether there was a conviction or acquittal3. CPA delegates the authority to the ministers of justice and health to regulatethe conditions, modalities, keeping, analysis and protection of biological materials
3rd EUROPEAN INNOCENCE NETWORK CONFERENCENovember, 2018
3. Keeping
CPA (Art. 327.a)allows keeping data (gathered from the samples):10 years from final decision -acquittal, or dismissed, and samples taken from victims and other persons (Art.327.a./3 CPA)20 years after, conviction (gathered from convicted person; Art.327.a./2 CPA)40 years;if offence has proscribed penalty of 10 years of imprisonment or more;or for sexual offences – 5 years (Art.327.a./2 CPA)permanently- thedata collected by means of molecular genetic analysis of the samples found at the scene as well as any other samples not linked to a particular person(Art.327.a./5CPA)
3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018
3. Keeping
Problem regardingcoropradelicti(biological samples):a) destruction of DNA samples:once they are linked to the trace, oronce the determination of identity or origin is made„..tested material belonging to the persons may be used and processed only for as long as any link to the trace or the determination of identity or origin is not ruled out”; Art. 327.a./1 CPAb) storage of samples and biological traces which contain DNA:data gathered from molecular –genetic analysis and biological material (traces of unknown origin and disputable traces) is kept in only one laboratory ‘IvanVučetić’- official laboratory (Ministry of internal affairs)cca35 000 profiles (cca4 mil. people population)It is not regulated for how long
3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018
4.Legal basis
Reopening of Criminal proceedings(Art. 501 CPA):Criminal proceedings terminated by a final judgement may be reopened to the benefit of the defendant, regardless of his presenceif new facts or new evidence are presented which alone or in relation to previous evidence appear likely to lead to the acquittal of the person (Art. 501 par.1 al. 3CPA)
3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018
5. Models
Special ombudsman or special division of ombudsmanSpecial division in State Attorney’s OfficeSpecial form of free legal aid in attorney's practice- in the Croatian Bar Association Attorney’s ChamberForm of NGO- associationLegal clinics as part of Faculty’s (of Law)Special center –form of public –private partnership
3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018
6.Conclusion
reopening of criminal proceeding (Art. 501. CPA)innocence projects in Croatia / yes or no?2017 - 12 091 (convicted persons)legal clinics -the most probable wayproblems, shortcoming and legal gaps– especiallyrelating the storage of evidence that contains biological tracesbetter legal frame - special Code regulating Innocence projects (who, under which conditions, etc.)
3rd EUROPEAN INNOCENCE NETWORK CONFERENCENovember, 2018
THANK YOU FOR YOUR ATTENTION!
3rd EUROPEAN INNOCENCE NETWORK CONFERENCENovember, 2018

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DNA and privacy protection through criminal law