TABLE 11.1 Australian DNA Data-Bank Chronology
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1989: Desmond Applebee is the first individual in Australia to be convicted on the basis of DNA evidence. The federal government and several states and territories initiate a process to develop regulatory standards for DNA collection and use by law enforcement.
1990: The federal government establishes the Model Criminal Code Officers Committee, tasked with developing a Model Forensic Procedures Bill.
1992: The National Institute of Forensic Science commences operations. Among its roles are the development of national standards of quality control and accreditation of forensic laboratories throughout Australia.
1996: Victoria begins collecting DNA from persons found guilty of a serious sexual offense.
1997: Police services endorse the establishment of a national criminal DNA database; forensic agencies from each jurisdiction adopt a commercially available multiplex polymerase chain reaction (PCR) system for routine use in their labs; Victoria enacts legislation regulating the use of its database and expands collection to include those convicted of drug trafficking, arson causing death, and aggravated burglary.
1998: Australian forensic laboratories agree to a common national standard for obtaining DNA profiles.
1998: The Australian Federal Government commits $50 million to establish CrimTrac, with a national DNA database as a central element.
1999: Victorian police obtain the first cold hit from the state DNA database when the DNA profile of convicted thief Wallid Haggag is matched to blood found in a car used in a burglary.
2000: The first DNA dragnet in Australia is carried out in Wee Waa, New South Wales. Samples are “voluntarily” collected from approximately 500 men. Stephen Boney confesses to the crime shortly after his DNA is collected and before it is processed.
2000: The Model Forensic Procedures Bill and the Proposed National DNA Database are introduced in the federal legislature; the CrimTrac agency is formed to facilitate sharing within and between jurisdictions.
2001: CrimTrac launches the National Criminal Investigation DNA Database (NCIDD) to allow the nine Australian jurisdictions to match DNA profiles. The jurisdictions begin to prepare legislation and ministerial arrangements to allow their participation in NCIDD. The Australian attorney-general and the minister for health and aged care initiate an inquiry conducted jointly by the Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee (AHEC) of the National Health and Medical Research Council (NHMRC) on how to best protect genetic privacy and guard against discrimination in health, employment, and law-enforcement contexts.
2003: The final report of the joint inquiry initiated in 2001, Essentially Yours: The Protection of Human Genetic Information in Australia, which includes 144 recommendations pertaining to human genetic databases, is tabled in the Australian Parliament.
2005: NCIDD DNA profile matching commences between Queensland and Western Australia and between Queensland and the Northern Territory.
2006: A North Queensland member of Parliament calls for DNA samples to be taken from all Australians and entered into a national database. A South Australian judge rules that police regularly broke laws controlling the state’s DNA database and illegally retained DNA from suspects cleared of crimes. NCIDD DNA profile matching commences between Western Australia and the Northern Territory and between Queensland and the commonwealth.
2007: The commonwealth reaches agreement with and incorporates Western Australia, New South Wales, and the Northern Territory into the NCIDD system. Seven jurisdictions sign a single ministerial arrangement to share DNA data through CrimTrac, removing the last obstacle to a truly national DNA system. Victoria and New South Wales have committed to signing when their legislation allows.
2008: New South Wales initiates Forensic DNA database matching agreements with Saskatchewan and Queensland.
2009: Forensic DNA database matching agreements are worked out between Victoria and the Northern Territory and between New South Wales and Queensland. The NCIDD becomes a national network with agreements for matching DNA profiles among all states and territories.
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Source: CrimTrac, http://www.crimtrac.gov.au/systems_projects/ (accessed May 27, 2010).
Chapter 12
Germany: From Eugenics to Forensics
It is not just the risks of false prosecution that make genetic fingerprints one of the most dangerous instruments in the arsenal of the investigative authorities. Their use also reverses the principle of presumption of innocence. Innocent bystanders who unwittingly find themselves at the scene of a crime could suddenly find themselves prosecuted by police due to traces of DNA they left behind.
—Martin Kreickenbaum1
Germany was initially resistant to establishing a DNA database because of public concerns over personal privacy and data protection. Because of the eugenics movements during German fascism in the mid-twentieth century, genetic information was considered very sensitive in postwar German society. However, in the aftermath of a few highly publicized cases of sexual abuse and child murder in Germany during 1996–1997, the German minister of justice asked for an inquiry into the possibility of creating a forensic DNA database. A spokesperson for the Ministry of the Interior issued a public statement that Germany could no longer afford to get along without a DNA database that would help police solve crimes. In 1997 Germany passed the Statute on Identification Through DNA Testing and amended its Code of Criminal Procedure to allow for the creation of such a database.
Among the high-profile cases that initiated a change in Germany’s stance on DNA collection was the murder in 1996 of an 11-year-old girl, Christina Nytsch, who had disappeared on her way home from an indoor swimming pool. Her body was found five days later in the woods near her home in Strücklingen, a small village of about 3,500 people in Lower Saxony. Within weeks of the murder the police began collecting saliva samples from volunteers in what became the most massive DNA dragnet in the world. In the end, 16,400 men between the ages of 18 and 30 provided DNA samples. The girl’s killer, Ronny Riken, was arrested in 1998 after his DNA was found to match DNA collected from the scene of the crime. He confessed to the murder, as well as to the rape of another 11-year-old.2
Legal Foundations for Taking DNA
Before the creation of the DNA database DNA had been used in Germany as an investigative tool for individual cases. The German Parliament and the courts began framing policies and decisions on collecting DNA in the early 1990s. The German Supreme Court (Bundesgerichtshof or BGH) rules on civil and criminal matters, whereas the Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) is responsible for constitutional matters such as privacy. In August 1990 the BGH ruled that DNA analysis of crime-scene evidence is admissible in court so long as it involves noncoding regions of the human genome.3 In August 1992 the BGH decided the question of whether DNA analysis alone could be the exclusive reason for a guilty verdict. The court ruled that criminal proceedings could not rely exclusively on DNA but must take into consideration all available evidence and testimonies.4 The court also accepted the “multiplication rule” for the calculation of allele frequencies and the probability of a random match (see chapter 1). However, it raised the question of the selection of an appropriate population sample for a suspect of a particular ethnic or racial group.5
The BVerfG took up the question whether the police can request DNA from individuals for whom there is no a priori suspicion. In August 1996 the court ruled that in serious criminal cases a judge may order the taking of blood samples from persons for DNA analysis even when there is no individualized suspicion.6 This opened the door for mass screenings. The German courts have ruled that under certain circumstances DNA dragnets involving a large number of potential suspects do not interfere with a person’s constitutional rights.7 Mass screenings for DNA must be voluntary and require a court order. Also, all biological samples and profiles must be destroyed immediately after the inve
stigation.8
An issue debated by the German Parliament was whether DNA taken for one purpose (to investigate a specific crime) could be used for another purpose (to determine a match for another crime). In December 1996 the German Parliament agreed on a law that extended Section 81 of the German Code of Criminal Procedure (Strafprozeßordnung or StPO) to allow DNA collected during a criminal investigation to be used for purposes other than what the courts had originally approved. According to the new law, blood samples and other bodily tissues may be taken from a suspect under court order and may be used in the criminal investigation in which he or she has been accused, as well as other relevant, pending (“einem anderen anhängigen”) criminal proceedings. Thus, if the suspect is charged with a murder, his DNA can be used to determine whether he was at the crime scene in a similar unsolved murder where crime-scene DNA evidence is preserved. At the same time, the law sought to protect individual privacy by requiring a defendant’s samples to be destroyed when the investigation is over.9 To further protect against any possibility of DNA profiling, the law also made it clear that DNA analysis could not be conducted for any purpose other than to determine the source of a DNA sample. It is thus expressly prohibited to troll the DNA in search of unusual inherited genetic diseases, mutations, or rare single-nucleotide polymorphisms (SNPs). Furthermore, the law required that DNA analysis could be carried out only upon written order by a judge and by an impartial expert named by the judge.10
In 1997 the German Parliament enacted 2, DNA-Identitätsfeststellungsgesetz (the Statute on Identification Through DNA Testing), and amended 81g of the German Code of Criminal Procedure, which authorized the creation of a national DNA database. Under the new law DNA could be compelled from individuals who had been convicted of serious crimes, but only by way of a court order. In addition, DNA profiles could be stored in the database only where there was probable cause to assume that the person would be involved in a similar crime in the future.11
Some Germans have expressed concern that retention of DNA profiles from convicted individuals represents an infringement of their constitutional rights. The convicted felon is stigmatized on the basis of a prognosis about his or her future behavior. It is also the case under German law that for an individual convicted of a crime, there is no clear limit of time on the storage of data. However, all database records are subjected to a case review after 10 years,12 at which time they may be deleted if a determination is made that they are no longer required.13 By a 1999 amendment to the Statute on Identification Through DNA Testing, state prosecutors are allowed to access the Federal Central Register of Criminal Offenders to seek a match of genetic profiles of convicts currently serving their prison terms with the profiles of unsolved crimes.
The BVerfG ruled on three cases in January 2001 where plaintiffs challenged the constitutionality of mandatory DNA testing and the retention of DNA profiles in the database on the grounds that they violated privacy and the right of self-determination over personal information. The high court held that the creation of a DNA database for use in facilitating future investigations into major crimes was constitutional. The court found that there was a compelling public interest in the state’s development of DNA databases to help criminal investigators solve crimes that justified the intrusion into privacy associated with the retention of DNA profiles. However, the court also accepted the statutes’ requirement that storage of the DNA test result must be based on a finding of probable cause that the person would be involved in a similar crime in the future, and it clarified that the justification for database inclusion must be provided on an individual basis and must be dependent on a careful prognosis of future risk. A court must consider how each case meets the criteria for inclusion and cannot use the argument that it is always possible that the individual will commit another crime.14
Whose DNA Can Be Taken?
In general, police can upload the DNA profile of a person to the national database if he or she is suspected or arrested for severe crimes, a criminal offense of substantial importance, or sexual assault punishable by more than one year in prison. The police cannot carry out a DNA analysis on any suspect exclusively on the basis of their own interpretation of the criteria. A judge must decide whether a person’s DNA can be taken and analyzed.
To avoid any conflict of interest, a judge also decides which expert can do DNA analysis. Initially, as noted above, this was required for all DNA testing, including the analysis of crime-scene samples. However, this resulted in a significant backlog of court decisions. In 2005 the law was amended to exclude crime-scene samples from authorization, as well as suspects who have provided informed consent.15 For others, the expert authorized to conduct DNA testing cannot come from the same institutional unit (police division) that is responsible for carrying out the investigation of the suspect. The expert must guarantee that neither he nor his unit or institution is engaged in any legal analysis associated with the case and that the results are not open to unauthorized individuals. In addition, the identity, date of birth, and address of the donor of the DNA are blinded to the person doing the DNA analysis.
Section 81e of the StPO permits the investigation of DNA only for well-defined purposes, such as determination of parentage, ascertaining the identity of the DNA source in criminal investigations, or determining the gender of the source of the sample. The police cannot troll the DNA for disease alleles, genetic dispositions, or so-called personality or behavior genes. The only phenotyping permitted under German law is gender determination.16
In context with forensic applications in Germany it was and still is necessary to explain that DNA analysis as used in forensics has nothing to do with genetic diagnostics. It has to be cleared up that it only has the potential to prove whether a biological sample in a crime case can originate from a suspected individual or whether a falsely suspected person can be excluded respectively. People have to be convinced that the methods as well as the loci just are useful for identification purposes and that it has not the potential to explore the privacy of an individual.17
The Germans have also established a public representative for data privacy protection (Datenschutzbeauftragter). This person provides independent oversight of the privacy of the data.
Two types of institutions in Germany carry out most of the forensic DNA analysis: police laboratories and university institutes of legal medicine. Police laboratories may come under state or federal authority. Private DNA laboratories are also capable, available, and sometimes called on to carry out DNA analysis. The criminal office in each state is called Landeskriminalamt (LKA). The federal office of criminal justice is known as the Bundeskriminalamt (BKA). Among the 25 institutes of legal medicine at the medical faculties of German universities are some that can provide the police with DNA analysis. The state laboratories began running forensic DNA analyses in 1987 after the heads of the forensic science institutes established a working group to set standards for forensic casework. By 1989 the group started to undertake DNA analysis in casework by applying restriction fragment length polymorphism (RFLP) techniques. In 1992 the federal laboratories started introducing the method of short tandem repeats (STRs) and fluorescently labeled primers that became the standard of Applied Biosystem’s DNA sequencer. Like many countries, Germany was slow to set up an accrediting system for its DNA laboratories. Forensic DNA laboratories operated for over 10 years without an accreditation system.18
Destruction of Biological Samples
One of the most notable aspects of Germany’s laws governing DNA collection is a requirement that the DNA samples collected from suspects or convicted individuals be destroyed immediately after profiling. The use of DNA for any purpose other than to obtain the information needed to create a DNA profile is illegal. In addition, DNA profiles must be removed from the database in cases where a suspect is acquitted or the proceedings are discontinued for other reasons without a verdict.19 All database records are subjected to a case review after 10 years to determine whether they should
be retained in the database. These provisions, along with those cited earlier in regard to DNA collection, represent perhaps the most stringent privacy protection measures enacted to date for forensic DNA databases.20 Belgium, Switzerland, the Netherlands, and Norway have similarly strict protections in regard to reference sample destruction.
By 2008 Germany had a forensic DNA database that contained profiles of 534,782 persons out of a population of 82 million people.21 The law on forensic DNA and national DNA data banks grew out of a series of court decisions and parliamentary enactments. Today DNA profiles may be taken from persons suspected of or arrested for serious crimes or sexual assault punishable by more than one year in prison.
A number of safeguards are built into Germany’s DNA data-banking system that are not seen in other systems, including those of the United States and the United Kingdom. Most notably, all DNA samples obtained from volunteers, suspects, and convicted individuals must be destroyed after successful profiling. DNA profiles are also destroyed automatically when they are no longer required for a case or where a suspect is acquitted, proceedings against the individual are not initiated, or a conviction is overturned unless the suspects are considered at risk for committing future crimes. DNA analysis may be carried out only by written order of a judge, who also designates the expert who will carry out the analysis. In addition, the samples must be analyzed anonymously (without names of the suspect or victim) in a laboratory that is not connected to the investigating agency. Forensic science institutes associated with law enforcement are presumed to be independent.
Genetic Justice Page 26