DNA and Innocence Projects in Croatia Doc dr

DNA and Innocence Projects in Croatia Doc. dr. sc. Sunčana Roksandić Vidlička Doc. dr. sc. Marta Dragičević Prtenjača (Faculty of Law, Zagreb, Croatia) 10 th ISC Criminal Law and Human Rights, March, 2018

Summary • Purposes of DNA Gathering • Legally and illegaly obtained DNA • Use of DNA Data – possible human rights infrigement • S. and Marper v. UK, ECHR • Maryland v. King, USA • Execution of Imprisonment Act (Croatia) • Croatian Constutional Court Decision • Criminal Law Protection of DNA Information 10 th ISC Criminal Law and Human Rights, March, 2018

Purposes of DNA Gathering • Identification – missing person, perptrator of crime, victim – conclusive evidence in court cases • Likelihood of Paternity/maternity • Health sector – medical care, insurance policy • Scientific research • Statistics – genetic heritage • Art -the field of biomedical visualisation and its use to communicate scientific research concepts is increasing with advances in visual and scientific technology 10 th ISC Criminal Law and Human Rights, March, 2018

Art v. Science • Artist: Heather Dewey-Hagborg (using actual DNA from found human genetic material to generate life-size facial model sculptures of human individuals using 3 D printing) 10 th ISC Criminal Law and Human Rights, March, 2018

DNA Gathering I. LEGALLY OBTAINED DNA: 1. Volunteers for research purposes - informed consent 2. Evidence law: civil proceedings (maternity/paternity issues, tort law…) and criminal proceedings 3. Police identification of suspects – consent? 4. From convicted persons – consent? 10 th ISC Criminal Law and Human Rights, March, 2018

DNA Gathering II. ILEGALLY OBTAINED DNA: 1. DNA theft 2. Employers requiring DNA data from employees 3. Insurance companies from insurants- use DNA profiles to discriminate against people with certain characteristics 4. Hacking 5. Violation of professional secret 10 th ISC Criminal Law and Human Rights, March, 2018

Civil liberty/human rights infringment • Downsides of DNA testing: - Individuals who are analysed without agreeing to testing and the storage of DNA profiles on innocent people - Trace of DNA on crime scene – falsly implicate an innocent person - FUTURE: genetical modification of children, etc. … 10 th ISC Criminal Law and Human Rights, March, 2018

Use of DNA • • Legal use of legally obtained DNA Ilegal use of ilegally obtained DNA Legal use of ilegally obtained DNA • Even though the collection of information might be justified, this does not inevitably mean that its retention or use will be equally defensible 10 th ISC Criminal Law and Human Rights, March, 2018

Use of DNA data • Legal use of DNA for a different purpose from the purpose it was obtained for: 1. DNA taken from a suspect for identity determination may be used only for detection or prevention of a criminal offence. (Art. 187(4) CPA) BUT 2. DNA taken from suspects and convicted persons may be used for scientific researches and statistics whitout their consent (Art. 6. Regulation on DNA Sample Gathering – no longer valid) 2009 -2014 10 th ISC Criminal Law and Human Rights, March, 2018

Use of DNA data • Ilegal use of DNA for a different purpose from the purpose it was obtained for: - e. g. : DNA taken from a suspect or a convicted person for paternity/maternity determination - refused by prisoner. . . 10 th ISC Criminal Law and Human Rights, March, 2018

Development 1. Fingerprints taken in the course of investigating crime should be destroyed when there are no longer suspicions about the defendant (exp. Williams v UK, No 19404/92) Establishment of DNA Database – new challenges: 2. Request for samples to be destroyed – refused in UK (S & Marper v. UK, App. 30562/04 and 30566/04, Decemer 4, 2008) The applicants complained under Articles 8 and 14 that the authorities had continued to retain their fingerprints and cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued. 10 th ISC Criminal Law and Human Rights, March, 2018

. . To retain such samples in respect of those suspected but not convited of an offence – failed to strike a fair balance between a private life intrests and the legitimate aim of prevention of crime CROATIA CPA allowed 20 years of keeping DNA data obtained before and during criminal proceedings without difference whethere was a conviction or acquittal CPA allows 20 (40) years after, conviction (40, if offence has proscribed penalty of 10 years or more, or for sexual offences – 5 years) Aquital, or dissmissed: 10 years from final decision 10 th ISC Criminal Law and Human Rights, March, 2018

CPA Art 187(5) • Personal data used to detrmine the identity of accused person, collected by the intelligence service can be used exceptionally as evidence in the cases for following criminal offences: • Assassination of the highest state offical (Art. 138 KZ/97), punishment for the most serious forms of criminal offences against the Republic of Croatia: treason, Art. 135 KZ/97): anti-state terrorism (Art 141 KZ/97), armed reballion (Art. 142 KZ/97), act of sabotage (Art. 143 KZ/97), assisting the enemy (Art. 149 KZ/97); undermining the military and defensive power of the state (Art 150 KZ/97); terrorism (Art. 169 KZ/97) • Terroism (Art. 97); Financing of terrorism (Art. 98), terrorist association (Art. 102) punishment for the most serious forms of criminal offences against the Republic of Croatia (Art. 351): high treason (Art. 340), acceding to occupation and capitulation (Art. 341), disclosure of secret information (Art 347), espionage (Art 348) committed by president of Republic of Croatia, the prime-minister or a member of a govermnet and the president of the Croatian Parliament 10 th ISC Criminal Law and Human Rights, March, 2018

US Supreme Court Decision • Maryland v. King, June 3, 2013 On August 4, 2009, King’s DNA profile (CODIS) was matched to the DNA sample from the 2003 rape in NDIS • 5: 4 “ When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody. . taking and analyzing a cheek swab of the arestee’s DNA is, like fingerprinting and photographing, is a legitimate police booking procedure that is reasonable under the Forth Amendment” 10 th ISC Criminal Law and Human Rights, March, 2018

Execution of Imprisonment Act • Prison Sentence Execution Act - Art. 174(a) – mandatory DNA sample gathering from prisoners serving imprisonment sentences • Consent is not required • Not yet applied in practice 10 th ISC Criminal Law and Human Rights, March, 2018

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 ways 2. CPA allows 20 years of keeping DNA data obtained before and during criminal proceedings without difference whethere was a conviction or acquittal 3. CPA delegates the authority to the ministers of justice and health to regulate the conditions regarding the conditions, modalities, keeping, analysis and protection of biological materials 10 th ISC Criminal Law and Human Rights, March, 2018

Art 211(1)(3) CPA • From a suspect for criminal offence punishable by prison sentence, police can take, withouth consent, samples for DNA anaysis for the purpose of identification 10 th ISC Criminal Law and Human Rights, March, 2018

Criminal Law Protection of DNA information I. Protection from unlawful DNA sample gathering II. Protection from unlawful access to DNA data III. Protection from discrimination IV. Protection from defamation V. Protection from clonning 10 th ISC Criminal Law and Human Rights, March, 2018

Criminal Law Protection of DNA information I. Protection from unlawful DNA sample gathering: 1. Theft (Art. 228 CC)– wrongful acquisition of tangible property of another person 2. Unauthorised Removal and Transplantation of Parts of Human Body (Art. 182 CC) – health worker removes an organ, tissue, cell. . . from a living donor 3. Unlawful Use of Personal Data (Art. 146 CC) -unlawful collecting, processing or use of personal dana (GDPR) 10 th ISC Criminal Law and Human Rights, March, 2018

Criminal Law Protection of DNA information II. Protection from unlawful access to DNA data: 1. Unauthorised Disclosure of a Professional Secret (Art. 145 CC) 2. Hacking (Art. 266 CC) – unauthorized access 3. Unauthorised Interception of Computer Data (Art. 269 CC) 4. Unlawful Use of Personal Data (Art. 146 CC) - unlawful collecting, processing or use of personal data 10 th ISC Criminal Law and Human Rights, March, 2018

Criminal Law Protection of DNA information III. Protection from discrimination: • Discrimination (Art. 125 CC) 10 th ISC Criminal Law and Human Rights, March, 2018

Criminal Law Protection of DNA information IV. Protection from defamation: • Defamation (Art. 148 CC) • Violation of Child’s Privacy (Art. 178 CC) 10 th ISC Criminal Law and Human Rights, March, 2018

Criminal Law Protection of DNA information V. Protection from clonning: • Clonning and Human Genom Alteration (Art. 108 CC) 10 th ISC Criminal Law and Human Rights, March, 2018

Innocence projects in Europe • European Innocence Network (September 2017), Milano • Ireland, Italy, Netherlands, United Kingdom Cases Accepted: • Cases of actual innocence in the Netherlands (will accept cases from countries inside and outside of Europe as well) • DNA and non-DNA cases • No sentence requirements • Shaken Baby Syndrome cases • Child Sex Abuse cases • Arson cases 10 th ISC Criminal Law and Human Rights, March, 2018

Conclusions • Re-opening 10 th ISC Criminal Law and Human Rights, March, 2018

THANK YOU FOR YOUR ATTENTION! 10 th ISC Criminal Law and Human Rights, March, 2018