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The Dutch DNA-law

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					Der Kriminalist 36. Jahrgang Heft 7/8 Juli/August 2004, p 293

Evolution of the Dutch DNA-law

Dr. Ir. C.P. van der Beek MBA 1

In the past years the Dutch DNA-legislation has been adapted several times to facilitate an
increased use of this powerful forensic technology to solve, prove and (hopefully) prevent
crimes. This article describes the main adaptations which have been brought about as well as
possible reasons which may have facilitated the acceptance of these adaptations by the Dutch
Parliament, the media and the general public.

The DNA-law of 1994
In 1994 the first specific DNA-law was introduced in the Netherlands. The main characteris-
tics of this DNA-law were:
 DNA-testing is performed under the the responsibility of the Judiciary. The police can
     suggest a DNA-test to investigate the source of biological trace material but only an inves-
     tigative judge can commission a DNA test in cases in which a suspect has been identified.
     A prosecutor can approve DNA-tests of biological trace material in cases without a sus-
     pect.
 A legal requirement for approving a DNA-test is that it has to be „urgently necessary to
     reveal the truth‟
 All DNA-testing is performed by the Netherlands Forensic Institute (NFI), which is an
     institute of the Dutch Ministry of Justice. The NFI has to be (and remain by annual exter-
     nal audits) accredited for forensic DNA-testing. When a suspect or his/her legal represent-
     ative disagrees with the outcome of the NFI-DNA-test, a second opinion can be obtained
     from the Forensic Laboratory for DNA-testing of the University of Leiden (FLDO) which
     is also accredited for forensic DNA-testing.
 DNA-testing is possible with respect to crime scene samples (of any crime), voluntarily
     cooperating persons and suspects of serious violent and sexual crimes for which the law
     allows 8 years imprisonment (or 6 years for some specific) sexual crimes. Suspects can be
     forced to take a DNA-test.
 Blood (venal puncture) is the preferred reference sample, buccal swabs and hairs are al-
     ternatives. A doctor or a nurse who acts under the responsibility of a doctor takes the sam-
     ple.
 DNA-profiles can be retained the DNA-database. The DNA-database is managed by the
     NFI. A presumed suspect who in the course of the investigation turns out to be wrongfully
     assigned as such or has been acquitted, has to be removed from the DNA-database. The
     maximum storage time for a DNA-profile is 18 years for a crime scene sample and 30
     years for a reference sample.

The DNA-law of 2001
The DNA-law of 1994 was amended in 2001 and this law now constitutes the core of the
present DNA-legislation in the Netherlands. The amendment of the law in 2001 introduced
the following changes:



1
    Dr. Van der Beek is Deputy Head of the Department of Biology of the Netherlands Forensic Institute
   DNA-testing was defined as producing DNA-profiles with the sole aim of comparing the
    origin of biological samples. It is not permitted to obtain other information from DNA col-
    lected for forensic purposes.
   The legal requirement for approving a DNA-test was changed from „urgently necessary to
    reveal the truth‟ to the less stringent „necessary for the investigation‟.
   Apart from investigative judges public prosecutors were also given the authority to order a
    DNA-profile to be generated by the NFI from a biological sample.
   Instead of blood, a buccal swab is the preferred reference sample, blood (finger prick) and
    hairs are alternatives. Persons who voluntarily take a DNA-test can choose the sampling
    method.
   DNA-testing is still possible with respect to crime scene samples (of any crime), volunta-
    rily cooperating persons and suspects but now comprises suspects of all crimes for which
    the law allows pre-trial custody (mainly crimes for which the law allows a maximum im-
    prisonment of 4 years or more). Suspects can still be forced to take a DNA-test but can al-
    so opt for voluntary cooperation, in which case specially trained police officers can take
    buccal swabs (but not other sample types; these still have to be taken by a doctor or a
    nurse who acts under the responsibility of a doctor).
   For DNA-testing of known persons the general rule is that reference samples are used.
    Only very serious reasons can justify the use of other biological material (like saliva on
    drinking gear or cigarette butts) from known persons for DNA-testing
   Persons who voluntarily take a DNA-test have to give their written permission after they
    have been informed about the possible consequences of taking a DNA-test and about the
    possibility to obtain legal advice.
   All DNA-profiles of suspects, crime-scene stains and deceased victims are retained on the
    Dutch DNA-database and compared to all DNA-profiles already present. DNA-profiles of
    suspects only remain in the DNA-database if they are convicted. If not they have to be
    removed. DNA-profiles of crime-scene stains have to be removed from the DNA-database
    when the corresponding person has been convicted for the crime(s) associated with the
    stain(s)
   Before a suspect is subjected to a DNA-test, the police are required to check if the person
    involved is already present in the DNA-database. If so, no new DNA-test is necessary.
   DNA-profiles are stored in the DNA-database for variable time periods:
    # Deceased victims: 18 years
    # Crime-scene stains: 18 years (or until the conviction of the persons involved)
    # Persons convicted of crimes for which the law allows 4-6 years imprisonment: 20 years
    # Persons convicted of crimes for which the law allows more than 6 years imprisonment:
      30 years
    # Upon a subsequent conviction the storage time may have to be adjusted.
   The cell material used to produce the DNA-profile is stored as long as the DNA-profile
    itself to enable later retyping if legally necessary or if a better typing technology becomes
    available.
   DNA-profiles (and the cell material from which they originate) are seen as personal data.
    Hence the Dutch Privacy Law is also applicable. As from 2003 the Netherlands Forensic
    Institute will be regularly audited for compliance with this law at the request of the Dutch
    parliament.

The DNA-law adaptation of 2003
The adaptation of the DNA-law in 2003 involved the introduction of the possibility to use
DNA-testing to determine externally visible properties of unknown donors of crime scene
stains when all other investigative tools have not led to a suspect. To enable this, the defini-
tion of DNA-testing was adapted. The law specifically excludes other investigations like those
into indicators for (inheritable) diseases or behavioral traits. The law presently mentions only
gender and ethnic origin as properties which can be investigated. Any new externally visible
property has to be specifically approved by the Minister of Justice after a test for such a prop-
erty has been developed and validated by the NFI and/or the FLDO. The results of the test are
not taken up in any DNA-database. Their only purpose is to help the police to find a suspect
more quickly by limiting the number of possible suspects on the basis of their likely appear-
ance. In this respect the use of DNA-testing to determine externally visible properties does not
differ from the use of eye-witnesses to get an idea of the likely appearance of the suspect.
After a possible suspect has been identified, a „normal‟ DNA-test is used to confirm that the
crime scene may originate from the suspect. Any storage of the data from externally visible
properties testing after the identification of a possible suspect is pointless because from that
moment on it is plain for all to see what the suspect looks like.

The DNA-law (proposal) of 2004
The most recent addition to the Dutch DNA-law involves the DNA-testing of convicted per-
sons. This addition has been approved by the Lower House of the Dutch Parliament (“Tweede
Kamer”) in April 2004 and presently is under review by the Upper House (“Eerste Kamer”) of
the Dutch Parliament. Their verdict is expected in a few months.
The following additions and changes will be in force after the law adaptation has been ap-
proved by the Dutch parliament:
 Persons convicted of all crimes for which the law allows pre-trial custody in principle
    qualify for a DNA-test if this has not happened during the investigation preceding their
    conviction. Their DNA-profiles are added to the Dutch DNA-database and compared to
    all DNA-profiles already present. The actual punishment imposed by the judge does not
    affect the obligation to take a DNA-test. This even includes convictions resulting in a
    community service obligation. An exception is made for convictions without any punish-
    ment or only a penalty. These convicts do not have to take a DNA-test.
 Persons who are in prison for above-mentioned crimes when the law is enacted also have
    to take a DNA-test.
 No appeal is possible against the sampling. However the subsequent generation of a
    DNA-profile from the sample may be challenged. If the challenge is successful the sample
    has to be destroyed.
 An appeal to a higher court to challenge the conviction does not neutralize the the obliga-
    tion to take a DNA-test. If however the conviction is overturned by the appeal to a higher
    court, the DNA-profile has to be removed from the DNA-database and the sample has to
    be destroyed.

Political and public acceptance of DNA-profiling as an investigative tool in the Netherlands
The three amendments of the Dutch DNA-law which have been put forward by the Dutch
government in the past few years have increased the possibilities to use DNA-testing for fo-
rensic purposes enormously. The amendments have been accepted by the Dutch Parliament
without major objections. Also the media and the general public have shown a generally posi-
tive attitude towards these changes2. In contrast to this, a lot of discussion was heard in Ger-
many about the last change of the DNA-law in The Netherlands, which relates to the determi-

2
 Some inquiries into the opinion of the Dutch general public can be found at the website of
“De stem van Nederland (The voice (or vote) of the Netherlands)” using DNA as a searchkey:
http://stemburo.noties.nl/archive-filter.php?PHPSESSID=657cf39b83b72c54d50f4399e921a762
nation of externally visible properties of unknown donors of crime scene stains. Several cha-
racteristics of the Dutch DNA-law and Dutch legal system may explain the difference in atti-
tude between the Dutch and the Germans with regards to these apparently heavily privacy-
invading new powers of the authorities.
 In the Netherlands DNA-testing is performed under the the responsibility of the Judiciary.
    The police can suggest a DNA-test to determine the source of biological trace material but
    only an investigative judge or a prosecutor can commission a DNA test. DNA-profiles are
    regarded as judicial information. A consequence of this is that exchanging DNA-profiles
    with other countries is not possible without an official international legal request. Another
    consequence is that the Netherlands cannot contribute DNA-profiles to the international
    DNA-database of Interpol which is a police organization. The supply of information from
    the Dutch DNA-database to the police is limited to the indication whether a DNA-profile
    of a person is (or has been) present in the Dutch DNA-database or not.
 All DNA-tests are performed by an accredited laboratory (NFI) which is part of the Dutch
    Ministry of Justice.
 Only convicted persons remain in the Dutch DNA-database. DNA-profiles of suspects
    who are not convicted are removed from the DNA-database (10-15%) and their buccal
    swabs are destroyed.
 Anybody who voluntarily takes a DNA-test or who is legally forced to take a DNA-test
    has to be informed about the possible consequences and the possibility to obtain legal ad-
    vice before taking the test. A second opinion can be obtained from an independent other
    laboratory if a person or his legal representative does not agree with the outcome of the
    DNA-test of the NFI.
 With regards to the investigation of coding DNA, the law solely permits the determination
    of externally visible properties of unknown donors of crime scene stains and explicitly ex-
    cludes any other properties like indicators for (inheritable) diseases or behavioral traits.
 Newly developed tests for externally visible properties have to be approved by the Minis-
    try of Justice.
 Externally visible properties can only be investigated if all other all other investigative
    tools have failed to lead to a suspect.
 Externally visible properties are only an investigative tool to limit the number of possible
    suspects on the basis of their likely appearance. After a possible suspect has been identi-
    fied, a „normal‟ DNA-test is used to confirm that the crime scene sample originates from
    the suspect.
 Data from externally visible properties testing are only used for investigative purposes and
    are not stored in any DNA-database. Storage is pointless anyway because after the identi-
    fication of a possible suspect anyone can see what the suspect looks like.

The best way to prove the effectiveness of a new law is to show that its expected results are
obtained. To monitor the effects of the amendments of the Dutch DNA-law, the Dutch gov-
ernment has commissioned a study to establish parameters with which these effects can be
monitored. The results of this study are expected to be published within the near future.

Further information (in Dutch) about legal and technical developments in forensic DNA-
testing in the Netherlands and the growth of the Dutch DNA-database can be found at the
internet site: www.DNAsporen.nl.

Questions can be asked using the e-mail address: DNAardigheden@nfi.minjus.nl

				
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