When Can DNA be Taken from a Convicted Person?
The collection of DNA cell material after a criminal conviction is regulated by the DNA Testing of Convicted Persons Act. This law stipulates that DNA material can be collected from individuals convicted of certain crimes and sentenced to a punishment or measure. If you have been acquitted in a criminal case or discharged from prosecution without imposition of a measure, no DNA material can be collected. Likewise, DNA collection cannot take place if you have only been fined. If you have been sentenced to perform community service, DNA collection is possible. This also applies if you received the community service through a criminal disposition from the Public Prosecutor. However, this is not the case if you have to perform community service after a settlement with the Public Prosecutor. Finally, DNA collection can also take place for minors.
For which Criminal Offenses Does the DNA Testing of Convicted Persons Act Apply?
The next question is for which crimes the collection of DNA material after conviction is possible. In principle, it must concern crimes that carry a maximum prison sentence of four years or more according to the law. This refers not to the sentence you actually received, but to the maximum sentence you could have received according to the law. Additionally, the law mentions several crimes that carry a maximum sentence of less than four years in prison, but where DNA collection is still possible. These include vandalism, threats, money laundering, and growing hemp. So even for certain less serious crimes, DNA cell material can be collected.
Do You Always Have to Provide DNA in the Aforementioned Cases?
If the aforementioned conditions are met, the Public Prosecutor is, in principle, obliged to order DNA collection from you. This principle has only two exceptions. Firstly, you don’t need to provide DNA material if your DNA profile is already known in the DNA database. Secondly, DNA collection is not necessary if it’s not plausible that your DNA profile could be significant in solving other crimes. This is determined by looking at the crime you committed and the circumstances under which you committed it. For example, it’s not likely to collect DNA material if you’ve been guilty of economic crimes, as these offenses cannot be solved using DNA material.
Do You also Have to Provide DNA if You Appeal?
Whether you have filed an appeal against your conviction is not relevant for DNA collection. Even if your appeal is still ongoing, DNA material can be collected from you.
Are You Obliged to Cooperate with the Collection of DNA Material?
When the Public Prosecutor believes that the conditions for DNA collection have been met, he will order the collection of DNA material. Unfortunately, you cannot choose not to cooperate with this. You are therefore obliged to provide your DNA cell material. If you do not comply with this order, you can be arrested. The DNA collection can also take place under coercion. In that case, a more invasive method of DNA collection may be chosen than if you voluntarily provide cell material.
How Does the DNA Collection Process Work?
When you have to provide DNA after your conviction, you will be notified by letter from the Public Prosecutor. Detainees can provide DNA in prison. If you are not detained, you will receive an invitation to appear at the police station.
DNA collection is preferably done by taking a cheek swab with a cotton swab. When the collection of cheek cells cannot provide suitable cell material for medical reasons, blood is taken or hair is collected. These methods are often also applied if you refuse to cooperate with the collection. The collection of cheek cells is not easily possible under coercion.
In most cases, the DNA is collected by a police officer. However, you have the right to have the cell material collected by a doctor or nurse. If you request this, it cannot be refused.
What Happens to your DNA Material after Collection?
Based on the DNA material collected from you, a DNA profile is determined. This profile is processed in the DNA database. This DNA database is consulted in the investigation of criminal offenses. When DNA material is found at a crime scene, it is checked whether there is a match with a DNA profile processed in the DNA database.
The DNA profile included in the database is destroyed after a certain period. The exact length of this period depends on the crime for which you were convicted, the sentence you received, and your criminal record. If you have committed an offense punishable by a maximum of six years or more, the DNA profile is destroyed after thirty years. In all other cases, the DNA profile is kept for a maximum of twenty years. If you are acquitted on appeal, the DNA profile must be destroyed immediately.
What Can You Do against DNA Collection?
Although you cannot prevent having to provide DNA, you can object to the inclusion of the DNA profile in the DNA database within fourteen days after the DNA collection. The objection must be filed with the court that convicted you in the first instance. If this objection succeeds, the collected DNA material must still be destroyed.
Why is it Advisable to Engage a Lawyer in an Objection Procedure?
It is advisable to engage a specialized criminal law attorney if you want to file an objection against the inclusion of your DNA profile in the DNA database. A lawyer can assess for you whether the conditions for DNA collection have been met. If the judge disagrees with your objection, there is no possibility of appeal. It is therefore important that you make good use of the chance you have.
A study by the Attorney General at the Supreme Court shows that in practice, the Public Prosecutor orders DNA collection in more cases than the legislator intended. On an annual basis, 22,000 to 25,000 DNA collection orders are issued. This often includes offenses that cannot be solved through DNA research. This is not in accordance with the requirements set by law. In those cases, an unjustified invasion of privacy is made. It is advisable to have a lawyer assess whether this is also the case for you.
