Proposition 53K1504

Projet de loi modifiant le Code d'instruction criminelle et la loi du 22 mars 1999 relative à la procédure d'identification par analyse ADN en matière pénale.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

May 26, 2011

Official page

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Status

Adopted

Requirement

Simple

Subjects

DNA protection of privacy database genetics genetic engineering organised crime judicial inquiry cross-border cooperation illegal migration judicial cooperation fight against crime criminal procedure criminal law terrorism exchange of information

Voting ¶

Voted to adopt

Groen CD&V Ecolo LE PS | SP ∉ Open Vld N-VA LDD MR VB

Abstained from voting

Vooruit

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Discussion ¶

July 19, 2011 | Plenary session (Chamber of representatives)

Full source

Given the technical nature of the dossier, I refer to the written report.

Mr. Speaker, dear colleagues, in the debate on this matter, which is first and foremost a technical dossier, I would ⁇ like to resume in plenary two observations that were made in committee. I believe it is useful to return to it for the clarity of the debates and especially for the usefulness that one day could be done of the preparatory work of this law.

I would like to refer, Mr. Minister, only to the new article 44 quinquies that is proposed to us.

First, I will address the problem of the age of the person on whom a DNA sample can be performed.

In the initial law in which we provided for the possibility of taking DNA samples, these were only possible on an adult person. As I read the preparatory work of this law, I want to say that it was not by chance that we voted this text. At that time, we had very clearly perceived the difficulty of carrying out a DNA sampling on a minor. The text proposed here allows the sampling of a sample from a person who has reached the age of 16. We are therefore very clearly in front of a minor person.

When this question is raised, you answer us or we are answered that we have nevertheless reached the age of 16 because, by analogy, it is at this age that we allow the dismissal of the youth court covered by the law on the protection of youth. This is obviously true. This means that it is from the age of 16 that a minor can fall under the jurisdiction of adults except that the conditions for doing so are much more numerous than what exists here. There are a whole series of conditions that do not exist in the text proposed today.

The second observation that is made when the problem of the minor and his capacity to consent to DNA sampling is raised relates to paragraph 3 of Article 44quinquies. This article specifies that the minor must be accompanied by an adult person of his choice. It’s actually written in every letter and that’s a good thing. At the same time, it is not because the minor of sixteen years of age is accompanied by an adult person of his choice that the latter has the legal capacity to agree to this levy. This person can be anyone; it can be a person aged eighteen or someone who is not a legal representative of the minor, whether it is a parent or any other legal representative.

Now, we are facing a sampling of human cells to allow for DNA analysis. This is an act that can have ⁇ severe consequences. This leads me to question whether the Salduz case-law should not be applied by analogy, that is to say, allowing at least the minor to have prior consultation with a counsel. I think we can make this comparison with Salduz jurisprudence.

Another problem relates to paragraph 1 of Article 44quinquies. Mr. Minister, I would like to hear you in this regard, for the clarity of the preparatory work. This paragraph marks a very clear break with current legislation.

At present, DNA sampling can only be done if there is an interest in the current information, i.e. for the file which is filed with the King’s Prosecutor. This first condition seems obvious. The second condition, which seems equally obvious, is that as part of this information, there is already a human cell sampling on the crime scene, for example. This means that if DNA is then taken from a suspect, a comparison will be possible. This falls under the meaning because, why take a DNA sample if there is no comparison possible?

In the text proposed to us today, one can order the sampling of a person against whom there are indications of guilt in the commission of the facts of the case under the charge of the King’s Prosecutor or in the commission of similar facts.

Although I read the text in all directions, I come very clearly to the conclusion that, thanks to this text, the King’s prosecutor, and not an investigative judge, can order a DNA collection on a person, even though no conviction document has been seized in the file that is opened, even though this DNA collection has no interest in the facts that one is occupied to report, since there is no preliminary collection on the places of crime. In addition, this collection can be made when there is no indication of guilt in charge of the person to whom the collection is made.

In summary, there is no proof of pre-promotion; making a DNA sampling has no interest; there may be no indication of guilt in the file for which the sampling is ordered. According to the text, "it would suffice that there are indications of guilt in the commission of similar facts." If I understand correctly, this "commission of similar facts" can therefore be in another file, possibly open or even not. In any case, the text does not specify this. This means that this piece of phrase “in the commission of similar facts” gives the possibility to the King’s prosecutor to do everything and anything, to carry out DNA samples for all purposes, that is, in bad French to go fishing for offences and justify afterwards by saying: “We will see if, one day, a file might allow us to use this DNA sampling.”

I have already said this in the committee, this is how I understand the text. It seems to me extremely dangerous. I think it is useful that you give us today your interpretation of this text, in order to open the door to abuses. Let us be clear! The elaboration of a law on DNA sampling is obviously not intended to regulate those who apply the rules and who act in compliance with all conditions. It is, of course, a matter of placing the guards, so as not to be able to betray the text and the intention of the legislator. That is why precision and focus are needed.

We will ⁇ support this bill. We think there are a lot of good things. In fact, it should have been promoted by Parliament for a long time, but well, today it is a fact.

In the committee, however, we have made another comment, which I would like to repeat here. The conditions under which DNA steels can be taken and preserved are a little too high for us. The convictions that someone has received, or the facts of which someone must be suspected, and the maximum penalties that are on them, are somewhat too high for us. For us, it can be much more likely to impose on suspects that they must surrender their DNA to databases, in order to avoid in the future that they are not traceable when they commit other crimes. Also for convicted persons, those deadlines could be slightly reduced, so that persons convicted for a fact from three years old can also in the future be prosecuted on the basis of the fact that data is stored in the databases.

On the other hand, we agree with the content of the present bill.

Mr. Speaker, the present important draft, which also had to be made urgently due to European obligations, is of a technical nature. There was a whole discussion in the committee.

Two fundamental concerns were raised by Mr. Giet, also in the committee.

First, the reduction of the minimum age from 18 to 16 years is in my opinion justifiable. It can also be used from that age. However, accompaniment is necessary, as well as the consent of the accompanying person and, if necessary, also the parents. This has been discussed.

There is a second problem, which I think we always misunderstand each other a bit. It is about the possibility that the prosecutor has to take DNA steel when there are similar cases. I apologize for the Dutch explanation in regard to the technique.

The question is the following. If in certain crimes there are no DNA traces in the file itself, but there is a suspicion that a person concerned has also been involved in similar files – take the example of a serial rapist – then the DNA steel must be removed, because it is possible that for that person, from whom DNA steel can not be taken in that file, a link can be made to other, similar facts, which can be suspected to have been committed by the same perpetrator. In that case, the DNA extraction can still happen, precisely to make the link with other dossiers, which allows a series of dossiers to be solved.

That is the meaning of the story. It does not happen randomly or simply. There should be similar files. Based on the text one gets the possibility to ask in similar files – it happens in the same region; there is a certain behavior or a pattern – DNA of someone with a view to a possible connection with other similar files.

This was explained in the committee. This is also stated in the report. So I think there are sufficient safeguards to assume that the current legislation does not open doors to new, very dangerous practices.

We remain within the limits of current legislation. I think it is a good design, which will be approved as soon as possible.

Mr. Speaker, Mr. Minister, thank you for your explanations.

I note that with regard to paragraph 1, the requirement exists, if not in the text at least in the intention, that files be opened and put to information to allow talking about similar facts.