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GENERAL INFORMATION ON DNA TESTING IN SPANISH CRIMINAL PROCEEDINGS
DNA testing has significantly transformed the criminal justice system, providing a robust and accurate tool for the identification of individuals involved in crimes.
In the context of criminal proceedings in Spain, the regulation and necessity of DNA sampling are crucial aspects that are addressed from both a legal and ethical perspective. This article analyzes the Spanish regulations on DNA testing in criminal proceedings, the mandatory or voluntary nature of DNA sampling and the implications that this entails.
1. Legal Framework of DNA Testing in Criminal Proceedings
1.1. Criminal Procedure Law
The Criminal Procedure Law (LECrim) is the main regulatory framework governing the collection and use of DNA evidence in Spanish criminal proceedings. In its article 363, the LECrim establishes the conditions under which biological samples can be taken from a person for genetic testing, highlighting the need for judicial authorization except in cases of consent of the person involved. This article is introduced as a measure to ensure that the collection of genetic tests respects the fundamental rights of individuals.
"Article 363
The Courts and Tribunals shall order the practice of chemical analysis only in those cases in which it is considered absolutely indispensable for the necessary judicial investigation and the proper administration of justice.
Whenever there are accredited reasons that justify it, the Examining Magistrate may agree, in a reasoned decision, to obtain biological samples from the suspect that are indispensable for the determination of his DNA profile. To this end, he may decide the practice of those acts of inspection, recognition or bodily intervention that are appropriate to the principles of proportionality and reasonableness."
1.2 Organic Law 10/2007, of October 8, 2007, regulating the police database on DNA-based identifiers.
It establishes a series of crimes for which a DNA sample must be collected, expressly mentioning those that affect life, liberty, sexual indemnity or freedom, the integrity of persons, property (provided that the crimes are committed with force, violence or intimidation of persons) or in the event that they are committed within criminal organizations and groups.
1.3. Personal Data Protection
Complementing this regulation, the Organic Law 3/2018, of December 5, on the Protection of Personal Data and Guarantee of Digital Rights (LOPDGDD) and the General Data Protection Regulation (GDPR) of the European Union, provide a framework for the protection of personal data, including genetic data. These regulations ensure that data obtained through DNA testing is treated with a high level of confidentiality and security, as it is "sensitive or specially protected data" as defined by these legal provisions, and therefore a stricter protocol for its protection is established.
2. The Need for DNA Sampling
2.1. Voluntariness and Consent
DNA sampling in Spanish criminal proceedings can be voluntary if the person involved gives explicit consent. This consent must be informed and free of coercion, ensuring that the individual understands the implications of the test and agrees to it without external pressure. In addition to this and as agreed by the Second Chamber of the Supreme Court in the Non-Jurisdictional Plenary of September 24, 2014, if the investigated person is in detention, the consent must be given in front of a lawyer and prior advice from the latter.
2.2. Judicial Authorization
In cases where the consent of the suspect is not obtained, the taking of DNA samples requires judicial authorization. The LECrim specifies that the judge must evaluate the necessity and proportionality of the measure, considering the right to privacy and the dignity of the suspect.
This assessment involves weighing the public interest in solving the crime against the individual rights of the suspect.
3. Legal and Ethical Implications
3.1. Fundamental Rights
The collection and use of DNA evidence in Spanish criminal proceedings raises important fundamental rights issues, including the right to privacy, intimacy and dignity. The regulation seeks to balance these rights with the need to ensure justice and public safety.
3.2. Admissibility of Evidence
Obtaining DNA evidence without following established legal procedures may result in the inadmissibility of the evidence in the criminal trial (nullity). Spanish jurisprudence has reiterated that any evidence obtained in violation of the individual's fundamental rights is subject to exclusion, which could significantly compromise the ability of the judicial system to prosecute and convict the guilty.
3.3. Impact on the Criminal Process
DNA testing has proven to be an invaluable tool in identifying suspects and solving criminal cases. However, its use must be strictly regulated to avoid abuses and protect individual rights. The need for genetic testing must be carefully weighed against due process and human rights.
According to the Order of the Provincial Court of Alicante (section 10) dated October 5, 2021, the collection of a biological sample will only be justified if it can be used to solve the crime in whose investigation the sample is intended to be taken, and it cannot be used solely to incorporate it into a police database, but in the event that it is obtained because it is necessary to solve the specific case, it will also be included in the database. For this reason, the taking of samples for the sole purpose of incorporating them into a database for storage purposes will be denied.
Conclusion
The regulation of DNA testing in Spanish criminal proceedings reflects a balance between the need for effective tools for the administration of justice and the protection of the fundamental rights of individuals.
DNA sampling, whether voluntary or through judicial authorization, must meet strict legal and ethical standards to ensure that the principles of privacy and dignity are respected. Ultimately, DNA testing is a powerful tool in the fight against crime, but its use must always be aligned with democratic values and fundamental human rights.
Therefore, when there is a motivated court order, we cannot refuse to provide a DNA sample, under penalty of committing a crime of disobedience (although this order can be appealed by our lawyer and if the appeal is upheld, the immediate destruction of the sample and the deletion of any reference to it in the police database will be ordered).
