Submitted text
1) How does the Federal Council assess the use of relative searches with the help of the DNA database from the point of view of compliance with fundamental rights?
2. the method is controversial and has not yet proven its effectiveness. Will the Federal Council ban the use of this method as part of the revision of the DNA profile law?
3. if the Federal Council nevertheless wants to allow the use of this method, is it prepared to restrict its use for particularly serious crimes and to define what is considered a serious crime?
Justification
Since 2015, according to the Federal Court, the use of a controversial procedure has been permitted: the search for relatives by means of a DNA database. The procedure makes it possible to search for partial matches between DNA found at the crime scene and profiles stored in the national DNA profile database Codis. A partial match may indicate that the person stored in Codis is closely related to the suspected person.
The Federal Data Protection and Information Commissioner has pointed out that this method is questionable in terms of criminal policy and fundamental rights. Since DNA is biometric personal data that requires special protection, its use requires an explicit legal basis. This is lacking for the search for relatives. In addition, the procedure represents a serious violation of the privacy of the persons stored in Codis. The person related to the alleged offender is involved in proceedings solely on the basis of their relationship. While in a criminal trial the relatives of an accused person have the right to refuse to testify, their consent is not required here. Finally, it must be borne in mind that the procedure does not bring the hoped-for success: In none of the fifteen or so applications to date has it led to the solving of the crime. This is because the similarity of the genetic material is often due to chance.
The Federal Data Protection and Information Commissioner is of the opinion that the search for relatives, if it is permitted, may only be used in the case of particularly serious crimes and only as a last resort if the search of Swiss and foreign databases has not led to any results. In addition, the principle of proportionality must be observed. Fedpol, however, let it be known in the press that it does not rule out using the method in cases of burglary, for example.
Statement of the Federal Council of 14.2.2018
1 The Federal Council is aware of the current practice in connection with the performance of relative searches as carried out on the basis of the DNA Profile Act (SR 363). The public prosecutor’s office responsible in an individual case sends the order to conduct such a special search in the DNA profile information system to the Federal Office of Police (fedpol), which, after a formal examination, forwards it to the DNA Coordination Unit at the Institute of Forensic Medicine of the University of Zurich for processing. In its ruling of 6 October 2015 (decision BB.2015.17), the Federal Criminal Court decided that the purpose of the DNA Profile Act – to increase the efficiency of criminal prosecution – includes this investigative method. Thus, the relative search can be conducted based on the current wording of the DNA Profile Law. This means that the limits that this law imposes on standard searches to identify offenders in order to protect the fundamental rights of the person concerned also apply to searches to identify any relatives of the alleged offender in the DNA profile information system.
2/3 The instrument of the relative search is available to the law enforcement agencies and is currently being used: If the search for the alleged perpetrator in the DNA profile information system does not yield a hit and the other investigative methods are also inconclusive, this instrument may prove to be a last resort to gain knowledge for criminal proceedings. Since the aforementioned ruling of the Federal Criminal Court of October 2015, around fifteen such searches have been conducted in the information system. Previous practice shows that the relative search is only ordered in important cases. As far as can be seen, this has not yet resulted in any perpetrator identifications in Switzerland. In foreign countries, however, where relative searches have been used for years, the concrete benefits of this instrument have been clearly proven. The Federal Council will present the consultation draft for the partial revision of the DNA profile law in implementation of the Vitali motion 15.4150 before the end of the year. In the process, the current practice of searching for relatives and a possible need for legislative regulation will also be examined. This bill is currently being prepared by fedpol for the attention of the higher authorities, based on the consultations of an expert group with representatives of the cantonal law enforcement authorities, forensic medicine, medical ethics and data protection, as well as with experts from the Federal Department of Justice and Police.