Chapter 13
Italy: A Data Bank in Search of a Law
Only a centralized databank, involving all Police forces and outside academic experts, formalized in a structure such as the Ministry of Justice and with a Scientific Committee of very high profile (whoever inserts data must have proper qualifications and ascertainable credits), might be able to offer the required guarantees to avoid the usual problems of an “Italian style” management of the DNA data collected. It is necessary to watch and check the quality and quantity of the data to ensure that it would always be possible, when the judiciary think the moment has come—to erase one’s own data.
—Giuseppe Novelli, professor of medical genetics,
Tor Vergata University1
Unlike in most European countries and the United States, police in Italy initiated operation of DNA data banks without proper legislative authorization. DNA was collected and stored by police and the Carabinieri Special Corps well before legislation worked its way through the Italian Senate in 2008 and the House in 2009. It is not clear how many databases were in existence in public or private hands during this period. This de facto database operation was criticized both within Italy and internationally. According to a 2007 report on European Union (EU) forensic DNA data banks:
Although there is currently no act that allows for the creation of a forensic DNA database, the Italian police do collect DNA samples. . . . As there is no statutory regulation regarding retention of DNA profiles, the current practice of the Italian police to store the DNA profiles that are derived from unidentified crime scene stains and from convicted offenders is probably illegal.2
A number of factors set the stage for Italy’s legislative effort in this area. Most notably, the country had a strong scientific tradition in molecular biology and genetics, capable of supporting forensic DNA science. In addition, Italy was seeking to raise its preparedness to meet potential terrorist attacks, and its police authorities looked on DNA data banks as a critical tool for their antiterrorism campaign, as well as to fight criminal activity in general. Finally, the Italian state also had an abiding interest in the protection of individual privacy through its Special Commission for the Rights to Privacy, also known as the Italian Data Protection Authority (or, for short, the Privacy Authority).3
The Privacy Authority
Absent a formal law, Italy’s Privacy Authority issued nonbinding opinions on DNA collection for identification and related subjects. Stefano Rodotà, former president of the Privacy Authority, stated in April 2004:
These databanks must be reserved to particularly relevant purposes and must concern extremely limited categories of individuals, collecting the data most important for identification, specifying the relationship between the collected data and the genetic material from which they have been extracted. In no case must the aforesaid databanks in any way resemble a mass screening or a utilization, even if only partially, discriminatory.4
In March 1997 the authority adopted a provision for protecting genetic data, including data and samples stored in biobanks.5 In past years the authority has given recommendations to Parliament and the government about the organization and management of DNA data and samples for use by law enforcement.6 In October 2007 it issued an opinion specific to the issue of the creation of a national DNA data bank.7 This opinion states: “It is urgent to regulate systematically this particularly delicate subject, [where] . . . the necessary points of reference for the legislators are lacking.”8 The text outlines existing policy gaps associated with the collection of biological material, the analysis of samples, the typology of profiles, the registration and security of data, and the storage of samples without the consent of the person concerned.
The Pisanu Law of 2005
On July 22, 2005, the Italian cabinet (a collective body formed by the ministers in the government and the prime minister) approved a law decree, “Urgent Measures Against International Terrorism.” The decree was proposed by Giuseppe Pisanu, minister of the interior and a member of the leading right-wing parliamentary majority party, Forza Italia. The Pisanu decree entered the Parliament on July 27 and became official law on July 30. The law was approved as an antiterrorism act in response to terrorism threats in Italy following the attacks in Great Britain.9 Under the decree DNA samples could be taken from a detained person who refused to give samples voluntarily after prior authorization was given by a prosecuting magistrate. Amendments were introduced stating that hair or saliva samples would be the source of the DNA profiles.
The law provides for “new regulations on personal identification” and is currently the only formal legal reference for collecting genetic data to solve crimes. The text of the Pisanu Law contains provisions on the collection of biological material, the analysis of samples, the typology of profiles, the registration of and access to data, storage of samples without consent, and security.
The Pisanu Law allows the collection of biological material for the purpose of forensic procedures: DNA can be obtained voluntarily or by force, or without the knowledge of the person concerned when it is collected from the scene of a crime.10 When the Pisanu Law was approved, the Privacy Authority notified the Parliament that special attention should be given to the DNA collections already in existence and created by local police departments and laboratories. For instance, should these collections be transferred to a central location, and if so, how? What will be the end use of the aforementioned archives and data banks? While similarly motivated by the threat of terrorism, this law is much less comprehensive than the one approved by the Italian Parliament following the Prüm Treaty (discussed next).
The Treaty of Prüm
One of the factors that appears to have accelerated the Italian government’s legislative agenda on DNA data banks was the European Union’s announcement in June 2007 that the elements contained in the Treaty of Prüm (better known as Schengen III) “now become part of EU law and shall be enforced in all countries belonging to the Community.” The treaty is considered the most rigorous document for international cooperation regarding security information. Initially signed on May 27, 2005, by seven member states of the European Union (Belgium, Germany, Spain, France, Luxembourg, the Netherlands, and Austria), the treaty seeks to strengthen transborder cooperation in an effort to fight against terrorism, criminal activity, and illegal immigration.11 The treaty envisages the collection of personal information, including both digital fingerprints and DNA profiles. Italy was among the second tier of signatory nations, which currently number 17.12
As a member of the EU, Italy is required to pass a law implementing the treaty that is consistent with the criteria established by the EU. Each of the EU member states has three years (starting in 2007) to harmonize its national law with the common rules.
In 2006 Giuliano Amato, then Italian home secretary, sent a letter of intent to give his assent to the Treaty of Prüm.13 Italy’s assent to the treaty became operative in June 2009 upon approval of its law governing DNA data banks.
Emerging Databases
Two investigating departments in Italy have DNA profiles of felons stored in their own computerized databases: (1) the Carabinieri Special Corps, known as the Reparto Investigativo Speciale (RIS), which has four branches located in different cities, each with self-managed data banks of biological samples and genetic profiles, and (2) the Scientific Police (forensic investigators).14 The protocols by which biological samples are obtained and stored by the two police corps are not the same, and standards in both cases appear far from those prescribed by the Privacy Authority.
The rules for postconviction DNA testing in cases where new evidence becomes available are described in the section of the Code of Criminal Procedure titled “Sentences Subject to Revision.” Newly found genetic profiles, mistakes in attribution, or new elements in the evaluation of samples previously collected may be considered new evidence. The convicted individual or the attorney general in the Court of Appeal may ask for a reopening of the trial on the basis
of this evidence.15 The Court of Appeal judge may accept the request or turn it down.
DNA can be also acquired as evidence during court proceedings. But as Andrea Monti, a legal expert in data banking, notes: “Judges accept DNA as evidence in trials, but it is not necessarily probative for conviction or absolution.”16
At present Italy is faced with rising xenophobia due to the politics of such parties as Lega Nord and Alleanza Nazionale. It is difficult to know whether DNA of non-European persons is held in national data banks for investigations. On occasion the media report that buccal swabs are taken from immigrants landing illegally on Italian soil or from individuals suspected of terrorism. There are no official data about this practice, but only newspaper reports about boats arriving in Sicily and other Mediterranean ports from Africa.17
A case of DNA data banking reported in the news tells of an Albanian citizen arrested in May 2006 at Gargazzone, a town near Merano in Trentino, for car theft. His DNA was found in a stolen car. The police were able to trace the DNA to him because his DNA was on file in an RIS data bank. In fact, years earlier his DNA had been analyzed together with 400 other biological samples during a previous rape investigation that had not identified any suspect.18 From the deposition of a Carabinieri officer questioned under oath during the investigation, it became known that this data bank contained about 15,000 profiles, all filed illegally.
Although no official data have been released, an official at the Carabinieri has stated that all the police databases combined contain fewer than 100,000 DNA profiles, with fewer than 50,000 held by the Carabinieri.19 Unofficial sources, mainly investigative journalistic reports, indicate that the RIS data bank contains 2,200 genetic profiles derived from the analysis of biological samples of individuals investigated in past cases. An additional 11,700 samples and profiles were taken from persons identified in the course of prosecutions but not under investigation, and another 5,100 were extracted from samples found at the scenes of crimes, so their sources are unknown. The total of 19,000 profiles seems to be the contents of the data bank run on the RIS software.
Italy shares national information with international police forces (Interpol). Robert Noble, Interpol general secretary, stated in July 2007 that a network was activated to allow the sharing of DNA profiles among the G8 countries (the United States, Canada, France, Germany, Russia, Japan, Italy, and Great Britain).20 It includes some 65,000 to 79,000 profiles obtained from crime scenes. The following year Noble encouraged the G8 countries to support national law-enforcement efforts in using and further developing Interpol’s global databases to combat organized crime.21
The Newly Passed Bill
The bill to join the Prüm Treaty (contained in the “security package” suggested by the present home secretary, Roberto Maroni) calls for the formation of a national DNA data bank.22 It was introduced in the Senate in July 2008 and was approved by it in December 2008. While the bill was under consideration in the legislature, the Italian Ministry of Justice simultaneously initiated an administrative process to fulfill Italy’s obligations to the Prüm Treaty. The proposed legislation would establish a national DNA data bank within the Department of Public Security in the Home Office, as well as a Central Laboratory of this data bank in the Department of Penitentiary Administration (DAP) in the Ministry of Justice. The bill was examined and approved by a commission from the Ministry of Justice and one from the Ministry of Foreign Affairs.23 Passage of the bill by the Italian Parliament on June 30, 2009 as Public Law No. 85 formally ratified the Prüm Treaty and provided the legal foundations for the creation of Italy’s national DNA data bank.
To set up the new DNA data bank, the legislation requests an appropriation of 11 million euros during the first year and an additional 15 million in the following three years. “By progressively substituting the fingerprint system this databank will make it possible to identify people,” declared Home Secretary Maroni. “It will become a definite reference point.”24 Since passage, however, the law has continued to be met with criticism.25 As of May 2010 Italy’s national DNA data bank was still not operational.
Prior to the passage of the Italian Parliament’s Law No. 85, Roberto Lattanzi, a member of the Italian Data Protection Authority, said in regard to the oversight of DNA data banking, “There is still what I would call a ‘fluid’ situation.”26 The Privacy Authority, an administrative institution with considerable autonomy and composed of four members (two selected from the Senate and two from the House), has provided guidelines pertaining to the conservation of biological samples, the privacy of human medical data, and the databasing of forensic profiles derived from biological samples.
Under the new law anyone who commits any crime, excluding financial crimes, punishable by three years or more in prison will have his or her DNA entered into a forensic database. Arrestees and juveniles who have not been convicted of a crime but who are charged with a crime punishable by three or more years in prison would also be required to provide DNA samples. The law contains provisions for forcing a suspect to yield a saliva sample under a magistrate’s order. According to an official of the Carabinieri, undocumented immigrants are profiled and placed in the database only if they have committed a qualifying offense.
The law states nothing about a properly managed chain of custody or how a mismanaged chain of custody will impact the admissibility of the samples as evidence in a judicial proceeding. Law enforcement officers can access DNA profiles from the database without prior authorization from the prosecutor responsible for the investigation or the judge assigned to the case. The law does not clearly identify who is responsible or accountable for the destruction of samples or profiles.
According to Professor Amedeo Santosuosso of the University of Pavia Law School, one of the most controversial provisions in the law is the one that deals with expungement of DNA samples and profiles in situations where a case is dismissed. If a biological sample and DNA profile are acquired under criminal investigation, the police may hold on to the biological sample unless the suspect is released and a petition is made to have the sample destroyed and the profile expunged.27 Similarly, a person convicted of a crime and subsequently exonerated must petition to have his or her DNA profile removed from the database. In all other cases, biological samples are retained for up to 20 years and the profiles for up to 40 years.
Currently police can obtain DNA from a suspect surreptitiously by following someone and picking up his or her discarded cigarette butt or cup. Police can also collect saliva when the law allows them to do so for establishing personal identification (in the absence of other identification) or if a person voluntarily gives a saliva sample. Italian police have also undertaken DNA dragnets to solve crimes, most notably in the murder of Maria Fronthaler in a village near Dobbiaco on April 1, 2002.28
The political Left has raised the possibility that DNA samples and tests could be used for purposes other than those officially stated. Francesco Pizzetti, current director of the Authority for the Right to Privacy (Guarante per la Protezione dei dati Personali), wrote about the ways in which DNA collection can violate the sphere of personal freedom. Pizzetti stressed in particular that
it is perfectly possible to build a DNA databank coherent with the formula of the Treaty of Prüm if the security measures and the criteria set by the Authority for the Right to Privacy are observed and the scheme once agreed upon by the Ministry of Justice and the Home Office could be something that would not provoke alarm or reactions on the part of the citizens or on our part.
Pizzetti mused: “What is this database for? What information is to be put into it? There needs to be clarity about how this data is collected so that people’s dignity is always respected. . . . Above all clarity is needed on which people can be forced to give samples and in which cases.”29
According to Luciano Garofano, an RIS colonel at Parma, one of the four Italian cities where these corps are located, the DNA data bank is to be considered an indispensable instrument for fighting crime
. “The political world pays more and more attention to such themes and the times are ripe,” Garofano stated.30
Under the new system, the central laboratory of the data bank at the DAP in the Ministry of Justice will have the task of storing biological evidence and samples from known individuals, while the database will contain computerized profiles. Only authorized personnel will be granted access to the database. Abuses are punishable by imprisonment from one to three years. In cases where someone is proved innocent, according to the law, all acquired DNA profiles must be destroyed. Otherwise profiles are retained for a maximum of 40 years and biological samples for a maximum of 20. This is guaranteed by the Italian Data Protection Authority and the National Committee for Biosecurity and Biotechnologies, under the control of the Presidency of the Council of Ministers.
Law No. 85 adapts Italian regulations to the Prüm European Treaty.31 However, the treaty states that only digital genetic profiles and not biological samples can be kept for identification purposes. The new law goes beyond this standard in authorizing retention of the biological samples. As stated by Francesco Pizzetti, “If we intend to collect data of both types we need articulated and complex rules. If we imagine a bank with only one type of data, we think it is difficult to accept that biological samples could be kept for all purposes.”32
Genetic Justice Page 27