The Council for the Judiciary is critical of a bill to allow the collection of DNA material before a suspect has been convicted. According to the Council, it is an invasion of privacy and lacks a comprehensive legal basis for the plan. Also, it considers the measure disproportionate. So writes the Council for the Judiciary in a legislative opinion.
Under current laws and regulations, a person convicted by a judge of a crime for which pre-trial detention is allowed must give up DNA material. This is stored in a DNA database managed by the Netherlands Forensic Institute (NFI). The Openbaar Ministerie orders DNA material to be taken, as well as DNA profiles to be removed from the database.
Minister of Justice and Security Dilan Yeşilgöz-Zegerius wants to make it possible to take DNA material as soon as a police investigation starts. The material will then be kept until a conviction follows. If the court acquits a suspect, the DNA material taken will be destroyed by the NFI.
Currently, 87 percent of convicts respond to the call to donate DNA material. Minister Yeşilgöz-Zegerius hopes to increase this percentage to 99 percent with her proposal.
The Judicial Council sees nothing wrong with the current form of the minister's plan. By taking DNA material before a suspect has actually been convicted, there is an unjustified invasion of his privacy. According to the minister's calculations, her plan will result in 17,400 suspects' DNA samples being wrongfully taken each year. This means that every hour two people's privacy is violated.
"This requires balancing the public interest in early collection of DNA on the one hand, and the protection of private life on the other. The infringement of fundamental rights must be as small as possible in view of the purpose," the Council stated. It advises the security minister to clarify and expand the fundamental rights analysis in the bill.
The Judicial Council also comments on the timing of DNA material collection. The proposal states that the material will be taken "at the end of the period" of detention. This is the form of detention that follows the arrest and may turn into pre-trial detention.
"That does complicate the timing. It is undesirable for a suspect to be detained longer because of DNA sampling. The collection of cellular material cannot be a reason to detain someone longer," the Council reasoned. The minister should better justify why she chose this moment to take DNA.
Finally, the Council questions the proportionality of the bill. If the ministry's calculations are correct, 43 percent of suspects have DNA material mistakenly taken each year. ''The most proportional is the scenario where the fewest number of sets of cellular material need be destroyed,'' the Council said.
