Introduction and Summary of Findings

The use of forensic DNA databases by law enforcement agencies around the globe is expanding unchecked at an alarming rate and efforts are underway to harmonize them.  Resources must be mobilized to establish strong standards and universal safeguards for this most invasive form of surveillance and profiling.  

A crime prevention tool that was originally intended only to identify the most dangerous convicted felons on a case by case basis, DNA collection and analysis is now routinely being used for a multiplicity of purposes that pose significant privacy and civil rights concerns to every citizen.  DNA is far different from other methods of identification such as fingerprints.  It is a window into an individual’s medical history and that of their entire family.  From the permanent retention of DNA samples of individuals never convicted of a crime, to DNA “dragnets” devoid of individualized suspicion and weak safeguards for the information once it is collected, the issues raised by the expanding use of DNA databanks pose a very serious threat to democracy. 

Today, 56 countries worldwide operate national DNA databases from Asia to Europe and the Americas.  Some are still in their infancy, while others such as those in the United States and the United Kingdom are large, highly sophisticated and have been established for at least fifteen years.  The growing number of DNA databases differ widely both in the categories of individuals included in the databases and in the allowed usages of the databases themselves.   All such databases operate on a model that allows investigators to use the information on a grand scale for multiple ongoing investigations and all reflect the racial and other biases of the broader criminal justice systems of which they are a part.  For example, while African-Americans are only 12% of the U.S. population, their profiles constitute 40% of the Federal database.  In the United Kingdom, nearly three-quarters of young men of African descent are on the database, as are tens of thousands of juveniles.

 In the United States, all 50 states and the Federal Bureau of Investigation maintain DNA databases.  The FBI database, known as CODIS (Combined DNA Index System) not only includes the DNA profiles of felons convicted in Federal courts, but effective this year may include profiles of  people arrested for federal crimes as well as undocumented immigrants that have been detained and furthermore allows states to upload profiles of

anyone convicted of a crime.  It now contains a growing record of over 5 million profiles.  Today, forty-four

states collect DNA from anyone convicted of a felony, thirty-nine states collect DNA from those convicted of certain misdemeanors, twenty-eight collect DNA from juvenile offenders, six states collect DNA of all individuals arrested and some states (such as California) have started to retain DNA from individuals identified as “suspects.”  Still other states such as Louisiana and New York have been discovered to have “offline” DNA databases including DNA samples and profiles taken from victims or suspects never charged with a crime. U.S. intelligence operates a separate database, the Joint Federal Agencies Intelligence DNA Database, for purposes of identifying and tracking alleged terrorist suspects and allows the military and other Federal agencies access to it.

The United Kingdom’s DNA database (NDNAD) is of similar size, containing 4.7 million records on the English and Welsh database representing over 5% of its population. The database, which grows by 30,000 samples each month, is populated by samples recovered from crime scenes and taken from police suspects and (in England and Wales) anyone arrested and detained at a police station for any recordable offense, permanently retaining both DNA profiles and samples.

DNA databases around the world vary widely on issues ranging from access and consent to retention of both DNA samples themselves as well as the computerized profiles created from them.  Countries, including the UK and the United States have used their DNA databases to match samples taken in “DNA dragnets” of individuals without probable cause simply because of their proximity to a crime scene.  These countries and others have used “familial searching” of databases for potential links between individuals whose DNA is already in the database with family members whose DNA is not.   In the United States, a few cases have already been reported where dubious science has been used to conduct “racial analysis” of crime scene evidence.  

The threats to privacy and democracy worldwide posed by the rapid growth of DNA databases are heightened by the growing effort to link all these databases into one international database.  In a post 9-11 world, law enforcement and national leaders have become increasingly concerned with terrorism, illegal immigration and “global crime.”

United Kingdom:  Through data-sharing agreements established through the European Union and other international institutions, DNA data is shared across borders with little oversight.

United States:  The National Institute of Justice’s International Center promotes information sharing among similar Institutes worldwide.

INTERPOL:  Interpol’s DNA database now contains profiles shared by 49 countries. 

Advisory groups have been formed in Europe and elsewhere tasked with improving harmonization of forensic DNA methods to allow for the ease of sharing data across national boundaries.  Such efforts highlight an already growing problem attendant to large DNA databases, the statistical increase in false matches which raises additional civil liberties concerns.

At the same time such multiple efforts are underway, no such international effort has been undertaken to create common standards for the content and use of DNA databases to ensure respect for privacy and individual rights.  On December 4, 2008, the European Court of Human Rights ruled unanimously in the Marper case that the retention of the DNA of innocent persons by the UK violated human rights law.  How the UK will react to the Court’s decision still remains unclear.  What is clear, though, is that an international effort is vital to ensure that relaxed standards for such databases do not become the norm.

The following report represents a first step to tackling this complex set of problems.  Far from complete, it nevertheless aspires to factual comprehensiveness.  To the extent possible, each country report touches on six key issues: (i) law on point, (ii) entry criteria, (iii) sample collection, (iv) removal criteria, (v) sample retention, and (vi) database access.  Each of these topics points up a critical feature of the current international forensic DNA landscape.  Each is also a potential site for abuse as well as for reform.  The ultimate goal of this report is to provide the rigorous factual basis required for strategic, effective activism.  While certain countries could have filled volumes of their own while others failed to yield even a page, it is the aspiration to breadth as well as depth that marks this project as unlike others.  Rather than confine the scope to those parts of the world where biotechnology common, I have tried (though not always succeeded) to focus on the developing as much as the developed world—for it is here, where policy and practice are unfixed, that advocacy can have its greatest impact.

 

Summary Tables

 

Country

Entry Criteria

Removal Criteria

Sample Retention

Australia

 

 

 

Austria

Convicted persons, suspects charged of a serious offences and all crime scene stains

Profiles of convicted persons are retained indefinitely, suspects’ profiles are removed upon acquittal, [but only after submitting a written request], and crime scene stains are kept until a case is solved.

Convicted persons’ samples must be destroyed when individual reaches age eighty, suspects samples are retained despite suspects’ acquittal, [a written request for destruction must be submitted]

Bahrain

All residents of Bahrain

Unknown

Unknown

Belarus

 

 

 

Belgium

Persons convicted of a “serious offence” and crime scene stains when ordered by a prosecutor

Convicted persons’ profiles are kept for 10 years after their death and crime scene stains are removed when no longer considered useful (order of public prosecution office is necessary)

Convicted persons’ samples must be destroyed once DNA profile is created, suspects’ profiles must be destroyed once the prosecutor has determined that a suspects’ request for independent DNA analysis will not be granted or when the result of such request has been communicated to the suspect

Botswana

Unknown

Unknown

Unknown

Bulgaria

Persons indicted for a premeditated indictable crime. 

As to personal data registered for purposes of national security or crime prevention, it must be erased if there is no more reason for maintaining them under the Act or pursuant to an act.  In determining whether to delete said personal data including DNA profiles, the Ministry of the Interior must consider the age of the individual, need of the information completion of an ongoing investigation or legal process, whether the individual has been convicted, amnesty status, implications of rehabilitation, or the expiration of a term provided by law.  As to personal data registered for crime prevention purposes only, it must be deleted upon written order of the Data Commissioner or upon a written request of the individual in question if it was registered unlawfully, the underlying criminal proceedings have been terminated, the individual in question is acquitted of all charges, the individual in question is exempt by reason of incapacity, the individual is deceased.

 

Canada

 

 

 

China (Hong Kong)

Persons convicted of any “serious arrestable offense,” and all crime scene stains.

Convicted persons’ profiles are kept indefinitely unless their conviction is subsequently quashed on appeal, in which case they are removed from the database.

Convicted persons’ samples must be destroyed as soon as is practicable from such time as there is no other charge against the person in relation to an offence which renders the retention of the sample necessary and all proceedings (including any appeal) arising out of the conviction have been concluded; suspects samples’ must be destroyed as soon as is practicable twelve months after the sample is taken if they are not charged with any offense, or if so charged when all charges are withdrawn, the person is discharged by a court before conviction of the offence or all the offences, or they are acquitted of all charges.

Colombia

 

 

 

Croatia

Any person whose identity is in question in the course of a criminal investigation and all crime scene stains. 

Convicted persons’ profiles are kept for twenty years after the completion of the underlying criminal proceeding.

 

Cyprus

All convicted persons, suspects, and crime scene stains

Convicted persons’ profiles are removed when their record is cleared, suspects’ profiles are removed when they are acquitted or otherwise cleared of all charges, and crime scene stains are kept until they are identified

All samples follow fate of DNA profile

Czech Republic

All convicted persons and crime scene stains

Convicted persons’ profiles are kept for eighty years after they are entered and crime scene stains are kept until they are identified

All samples follow fate of DNA profile

Denmark

Convicted persons, suspects charged of a offence that could lead to a prison sentence of 1½ years or more, and all crime scene stains

Convicted persons’ and suspects’ profiles are kept until two years after their death or upon their reaching age eighty and crime scene stains are retained for the “prescribed term” of the case as determined by the Danish Penalty Act

All samples follow fate of DNA profile

Egypt

Unknown

Unknown

Unknown

Estonia

Persons convicted of or arrested for any recordable offence and all Crime Scene Stains

Convicted persons’ and suspect’s profiles are kept for ten years after their death and crime scene stains are kept for seventy-five years after they are entered

All samples are retained indefinitely

Finland

Convicted persons serving a prison sentence of 3 years or more, suspects charged of a crime that could lead to a prison sentence of 6 months or more, and all crime scene stains

Convicted persons’ profiles are kept for ten years after the death of the convicted person, suspects’ profiles are deleted within one year of a prosecutorial determination that there is no evidence of an offence, charges have been dismissed, when their sentence has been nullified, or ten years after the suspects death if not removed earlier; crime scene stains are kept indefinitely

Convicted persons’ samples must be destroyed ten years after their death, suspects’ samples must be destroyed within one year of a prosecutorial determination that there is no evidence of an offence, charges have been dismissed, when their sentence has been nullified, or ten years after the suspects death if not removed earlier

France

Persons convicted of or charged with a serious offence (list in law) and crime scene stains when deemed relevant

Convicted persons’ profiles are kept for forty years after conviction upon their eightieth birthday, suspects’ profiles are removed by motion of the prosecutor or the individual upon grounds that their storage no longer serves its original purpose, and crime scene stains are deleted forty years after they have been analyzed

Convicted persons’ samples are retained for forty years after their conviction or until their eightieth birthday; suspects’ samples are kept until conviction or acquittal: i.e. procedurally, DNA samples are treated as regular evidence

FYR Macedonia

Unknown

Unknown

Unknown

Germany

Persons convicted of a serious offence or repeatedly committing the same minor offence, suspects charged of a serious offence, and crime scene stains when related to any recordable offence

Convicted persons’ and suspects profiles are removed when their retention is no longer necessary and crime scene stains must be deleted after 30 years of their entry

Convicted persons’ and suspects’ samples must be destroyed when they are no longer considered useful for investigatory purposes

Hungary

Persons convicted of one of the crime categories which are listed in law, suspects charged with an offence that could lead to a prison sentence of 5 years or more or that is listed in law, and all crime scene stains

Convicted persons’ profiles are kept until twenty years after conviction, suspects’ profiles are retained until the underlying proceeding is abandoned or the individual is acquitted, and crime scene stains are deleted at the time proscribed by law

Convicted persons samples must be destroyed twenty years after their conviction and suspects’ samples must be destroyed upon their acquittal or abandonment of the underlying investigation or proceeding

Iceland

 

 

 

Iran

Unknown

Unknown

Unknown

Israel

 

 

 

Jamaica

Unknown

Unknown

Unknown

Japan

 

 

 

Jordan

Unknown

Unknown

Unknown

Korea (Rep. of)

Unknown

Unknown

Unknown

Kuwait

Unknown

Unknown

Unknown

Latvia

Convicted or suspected of any recordable offence and all crime scene stains

Convicted persons’ and suspects’ profiles are retained for seventy five years after their entry and crime scene samples are kept until they are identified

All samples are kept for seventy five years

Lithuania

All convicted persons, suspects, and crime scene stains

Convicted persons’ and suspects profiles are retained for one hundred years after their entry or ten years after their death and crime scene stains are kept indefinitely

All samples must be destroyed once they have been analyzed and a DNA profile derived therefrom

Luxembourg

Persons convicted of an offence that is listed in law (order of solicitor or examining magistrate is required), persons suspected of any recordable offence (order of solicitor or examining magistrate is required) and crime scene stains only by order of the solicitor, the examining magistrate or a judicial police officer acting by order of one these magistrates

Convicted persons’ profiles are kept for ten years after their death, suspects’ profiles are deleted upon their acquittal or ten years after their death, and crime scene stains are retained for thirty years after their entry

Convicted persons’ samples are destroyed ten years after their death; suspects’ samples are destroyed upon acquittal, ten years after their death, or upon the expiration of the a term prescribed by law

Malaysia

 

 

 

Morocco

Unknown

Unknown

Unknown

Netherlands

Persons convicted or suspected of any recordable offence and all crime scene stains

Convicted persons’ profiles are kept for one hundred years after the individual’s date of birth, suspects’ profiles are removed upon their acquittal, and crime scene stains are removed when no longer considered useful

Convicted persons’ samples are retained indefinitely; suspects samples must be destroyed upon their acquittal

New Zealand

 

 

 

Norway

 

 

 

Panama

 

 

 

Poland

 

 

 

Portugal

 

 

 

Romania

 

 

 

Saudi Arabia

Unknown

Unknown

Unknown

Singapore

 

 

 

Slovakia

Persons condemned to punishment other than a fine, all suspects, if warranted by possible prison sentence, and all crime scene stains

Convicted persons’ profiles are retained for ten years after conviction, suspects’ profiles are removed upon their acquittal, and crime scene stains are kept until they are identified, when the underlying case is solved, or after fifteen or thirty years depending on the severity of the underlying offense

All samples must be destroyed “as soon as possible” [GET QT FROM LAW]

Slovenia

 

 

 

South Africa

 

 

 

Spain

 

 

 

Sweden

Persons serving a prison sentence of 4 years or more, suspects charged of an offence that could lead to a prison sentence of 4 years or more (approval of prosecutor is required), and all crime scene stains

Convicted persons’ profiles are kept for twenty years after their entry for individuals sentenced to no more than six years, thirty years for individuals sentenced to more than six years, or at most twenty years after the individual’s death; suspects’ profiles are removed upon acquittal and crime scene stains are deleted after twelve, twenty, or eighty years depending on the severity of the underlying offense

Have to be destroyed twenty years after their creation for individuals sentenced to no more than six years, thirty years for individuals sentenced to more than six years, or at most twenty years after the individual’s death;suspects’ samples must be destroyed upon their acquittal

Switzerland

 

 

 

Tunisia

Unknown

Unknown

Unknown

UK

Persons convicted of any recordable offence, arrested for any recordable offense, and all crime scene stains For Scotland: Persons convicted of any recordable offence, arrested for any recordable offense, and all crime scene stains

Convicted persons’ and suspects’ profiles are retained indefinitely and crime scene stains are kept until they have been identified For Scotland: Convicted persons’ profiles are retained indefinitely, suspects’ profiles are retained until the underlying proceeding is abandoned or the individual is acquitted, and crime scene stains are kept until they have been identified

All samples are retained indefinitely For Scotland: Convicted persons’ samples are retained indefinitely, but suspects’ samples must be destroyed upon their acquittal or when no criminal proceedings are initiated

Ukraine

 

 

 

United Arab Emirates

Unknown

Unknown

Unknown

United States

12 states have laws authorizing arrestee sampling.  All 50 states require that convicted sex offenders provide a DNA sample; 46 states require that all convicted felons provide a DNA sample.  Eleven states specify certain misdemeanors among those who must provide a sample.  There are 28 states that include DNA from delinquent juveniles in the database.

38 states contain statutes that detail expungement criteria and procedure.  33 require the offender to initiate the process.

The criteria for retention vary from immediate removal, if a sample is not used, to retention of a sample for at least 35 years, to permanent retention for certain specified offences.

 

Controling Laws & Regulations

 

Australia

Commonwealth Crimes Act of 1914 (as amended up to July 2008)

The Crimes (Forensic Procedures) Act of 2000 No 59 (NSW)

The Criminal Law (Forensic Procedures) Act 2007 (SA)

Austria

State Police Law (SPG)

Bahrain

Law No. 45 of 2006 (“Identity Card Law”)

Law No. 46 of 2006

Belarus

Minister of Justice Order No. 471 of December 5, 2008

Ministry of Justice Resolution No. 20 of July 21, 2003

Belgium

Law of 22 March 1999

Royal Decree of 4 February 2002. 

Botswana

Unknown

Bulgaria

Instruction I-73/2000

Ordinance on Police Records

Law for the Ministry of the Interior

Criminal Procedure Code

Canada

DNA Identification Act of 1998

China (Hong Kong)

The Dangerous Drugs, Independent Commission Against Corruption and Police Force Ordinance

Independent Commission Against Corruption Ordinance

Police Force Ordinance

Colombia

Code of Criminal Procedure

Decision C-025, 2009 of the Colombian Constitutional Court

Croatia

Police Act

Code of Criminal Procedure

Rules on Police Conduct

Law on Prisons

Cyprus

Police Law

Protection of Personal Data Act.,

Czech Republic

Criminal Procedure Act

Law on Police

Binding Instruction No. 88/2002 of the President of the Police

Denmark

Law Establishing a Central DNA Profile Register

Egypt

Unknown

Estonia

Government of the Republic Act

Databases Act, Police Act

Personal Data Protection Act

Code of Criminal Procedure

Decree of National Police Commissioner

Finland

Coercive Measures Act

Police Act

Police Personal Data File Act

France

Code of Criminal Procedure

Law No. 98-468 of June 17, 1998

Law No. 2001-1062 of November 15, 2001

Law No. 2003-239 of March 18, 2003

Decree No. 2000-413 of May 18, 2000

Decree No. 2002-697 of April 30, 2002

Decree No. 2004-470 of May 25, 2004

Decree No. 2004-71 of May 25, 2004

Decree No. 2009-785 of June 23, 2009.

Deliberation No. 2008-113 of May 14, 2008

Circular of the Ministry of Justice of 27 July 2004

FYR Macedonia

Unknown

Germany

Rules of Legal Procedure (Strafprozessordnung)

Bundeskriminalamtgesetz (act for the Federal Criminal Investigation Office)

Hungary

Act LXXXV of 1999 on the Criminal Records and Certificates on Criminal Record.

Iceland

Law on Police DNA File

Police DNA File Regulations

Iran

Unknown

Israel

2005 Amendment to the Criminal Procedure Law

Jamaica

Unknown

Japan

DNA Handling and Recording Regulations

Police Instructions on DNA

Jordan

Unknown

Korea (Rep. of)

Unknown

Kuwait

Unknown

Latvia

Law on Establishing the National DNA Database

Lithuania

Criminal Procedure Code of the Republic of Lithuania

Lithuanian Police Activity Law.

Instructions on DNA Database Management,

Order of the General Commissar of the Lithuanian Police

Luxembourg

Law No. 163 of August 25, 2006 on the Procedures for Identification by DNA Fingerprints in Criminal Cases

Malaysia

The Deoxyribonucleic Acid (DNA) Identification Act of 2009

Morocco

Unknown

Netherlands

Code of Criminal Procedure

DNA-investigation in Criminal Proceedings Act

New Zealand

 

Norway

Criminal Procedures Act

Law Regulating the Prosecuting Authority

Panama

Law No. 80 of 23 November 1998

Poland

Code of Criminal Procedure

Police Act

Portugal

Law No. 5 of February 12, 2008

Romania

Law No 76/2008 establishes the National System of JudicialGenetic Data (hereinafter “SNDGJ”).

Saudi Arabia

Unknown

Singapore

Criminal Law (Temporary Provisions) Act

Registration of Criminals Act

Slovakia

The Act n. 417/2002 -Use of DNA analysis for identification of persons

Slovenia

Police Act

Code of Criminal Procedure

South Africa

Criminal Procedure Act

Spain

Criminal Procedure Law

Law 15/1999 on Protection of Personal Data

Sweden

Code of Judicial Procedure

Police Data Act

Switzerland

DNA-Profil-Gesetz

DNA-Profil-Verodnung

DNA-Analyselabor-Verodnung

Tunisia

Unknown

UK

Police and Criminal Evidence Act (PACE)

Criminal Justice and Public Order Act (CJPOA)

Criminal Evidence (Amendment) Act

Criminal Justice and Police Act (CJPA)

Criminal Justice Act (CJA) 2003

Data Protection Act (DPA)

Human Rights Act (HRA)

Ukraine

Approved Regulations on the Operation of the Ministry of Internal Affairs Criminal Records Services

United Arab Emirates

Unknown

United States

The DNA Identification Act, 1994

Justice for All Act, 2004

Violence Against Women Act, 2005

 

Database Entry Criteria

 

Country

Limited

Unlimited

Suspects

Convicts

Suspects

Convicts

Australia

 

X

X

 

Austria

X

 

 

X

Bahrain

 

 

X

X

Belarus

 

 

 

 

Belgium

 

X

 

 

Botswana

 

 

 

 

Bulgaria

X

X

 

 

Canada

 

X

 

 

China (Hong Kong)

X

X

 

 

Colombia

 

 

X

X

Croatia

 

 

X

X

Cyprus

 

 

X

X

Czech Republic

X

 

 

X

Denmark

X

 

 

X

Egypt

 

 

 

 

Estonia

 

 

X

X

Finland

X

X

 

 

France

X

X

 

 

FYR Macedonia

 

 

 

 

Germany

X

X

 

 

Hungary

X

X

 

 

Iceland

 

 

 

 

Iran

 

 

 

 

Israel

 

 

 

 

Jamaica

 

 

 

 

Japan

 

 

 

 

Jordan

 

 

 

 

Korea (Rep. of)

 

 

 

 

Kuwait

 

 

 

 

Latvia

 

 

X

X

Lithuania

 

 

X

X

Luxembourg

 

X

X

 

Malaysia

 

 

X

X

Morocco

 

 

 

 

Netherlands

X

X

 

 

New Zealand

 

 

 

 

Norway

 

 

 

 

Panama

 

 

X

X

Poland

X

X

 

 

Portugal

 

 

X

X

Romania

X

X

 

 

Saudi Arabia

 

 

 

 

Singapore

 

X

X

 

Slovakia

 

 

X

X

Slovenia

 

 

X

X

South Africa

 

 

X

 

Spain

 

 

 

 

Sweden

X

X

 

 

Switzerland

 

 

X

X

Tunisia

 

 

 

 

UK

 

 

X

X

Ukraine

 

 

 

 

United Arab Emirates

 

 

X

X

United States

X

X