An Act To Amend The Code Of Criminal Procedure And Act Of 22 March 1999 On The Procedure For Identification By Dna Analysis In Criminal Matters, To Create A Databank Of Dna 'disappeared Persons ' (1).

Original Language Title: Loi modifiant le Code d'instruction criminelle et la loi du 22 mars 1999 relative à la procédure d'identification par analyse ADN en matière pénale, en vue de créer une banque de données ADN « Personnes disparues » (1)

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21 DECEMBER 2013. - An Act to amend the Code of Criminal Investigation and the Act of 22 March 1999 on the procedure for DNA identification in criminal matters, with a view to creating a DNA data bank "Disappeared Persons" (1)



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1er. - General provision
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Amendments to the Code of Criminal Investigation
Art. 2. In section 44ter of the Code of Criminal Investigation, inserted by the Act of 22 March 1999 and replaced by the Act of 7 November 2011, the following amendments are made:
1° in 5°, the words "Criminalistic" and "Convicted" are replaced by the words "Criminalistic", "Condemned" and "People Missed";
2° the article is completed by a 9° written as follows:
"9th missing person: the person whose disappearance is considered disturbing by the King's Prosecutor."
Art. 3. In section 44quater of the same Code, inserted by the law of November 7, 2011, the following amendments are made:
1° § 1er is supplemented by a paragraph that reads as follows:
"If applicable, the King's Attorney informs the expert that these are traces of missing persons or unidentified mortal remains whose DNA profile will be recorded in the DNA data bank "Extinct persons". ";
2° in § 3, paragraph 1er, the words "Article 5quater, §§ 1er3 and 4 are replaced by the words "Article 5quater, §§ 1er3, 4 and 5".
Art. 4. In the same Code, a 44septic article is inserted as follows:
"Art. 44s. § 1er. The Crown Prosecutor may, with the written agreement of an ascendant, descendant or collateral of a missing person, order the removal of a reference sample from that ascendant, descendant or collateral.
This agreement can only be validly given if the King's Prosecutor or a judicial police officer, auxiliary to the King's Prosecutor, has previously informed the concerned parent:
1° of the circumstances of the case under which the removal is requested;
2°, if any, of the comparison of its DNA profile with the DNA profile of useful discoveries;
3° of the recording of its DNA profile in the DNA data bank "Disappeared persons";
4° of the systematic comparison of its DNA profile with the DNA profiles registered in national and foreign DNA data banks, with the exclusive aim of allowing to identify directly or indirectly unknown deceased persons or to facilitate the search for missing persons;
5° in case of a positive connection with one of the DNA profiles referred to in 4°, of the registration of this link.
This information is referred to in the written agreement of the interested party.
§ 2. The collection, the establishment of the DNA profile of the reference sample, the comparison of the DNA profiles, the transmission of the result to the King's prosecutor, the notification of the result to the interested party, the counter expertise and the destruction of the reference sample and the drifting samples containing DNA are carried out in accordance with Article 44quinquies, §§ 2 to 6 and 9.
The quality of ascendant, descendant or collateral of a missing person is communicated to the expert responsible for comparing DNA profiles.
§ 3. Unless otherwise decided by the King's Prosecutor, the expert who was charged with establishing the DNA profile of the reference sample pursuant to § 2 shall, within fifteen days after the transmission of his report, communicate the DNA profile to the manager of the national DNA data banks, for the purposes of Article 5quater, §§ 1er3, 4 and 5 of the Act of 22 March 1999 on the procedure for DNA identification in criminal matters. ".
CHAPTER 3. - Amendments to the Act of 22 March 1999 relating to DNA identification procedure in criminal matters
Art. 5. In section 2 of the Act of 22 March 1999 on the procedure for identification by DNA analysis in criminal matters, replaced by the Act of 7 November 2011, the following amendments are made:
1° to 5°, the words "Criminalistic" and "Convicted" "are replaced by the words "Criminalistic", "Condemned" and "People missing";
2° the article is completed by a 12° written as follows:
"12th missing person: the person whose disappearance is considered disturbing by the King's Prosecutor."
Art. 6. Section 3 of the Act, replaced by the Act of November 7, 2011, is replaced by the following:
"Art. 3. § 1er. Without prejudice to what is provided for in § 2, DNA analysis and DNA profile comparison may only be carried out in criminal proceedings, in order to allow direct or indirect identification of persons involved in the commission of an offence, to lift the suspicions that weigh on other persons or to prove their innocence.
§ 2. However, DNA analysis and comparison of DNA profiles can also be done to enable direct or indirect identification of unknown deceased persons or to facilitate the search for missing persons. ".
Art. 7. In section 3bis of the Act, inserted by the Act of 7 November 2011, the following amendments are made:
1° in § 2, the words "articles 44quater, 44quinquies and 90undecies of the Code of Criminal Investigation and articles 4, 5, 5bis and 5ter of this Law" are replaced by the words "articles 44quater, 44quinquies, 44septies and 90undecies of the Code of Criminal Investigation and articles 4, 4bis, 5bis and 5ter of this Law"
2° in § 3, the words "articles 44quinquies and 90undecies of the Code of Criminal Investigation" are replaced by the words "articles 44quinquies, 44septies and 90undecies of the Code of Criminal Investigation";
3° § 3 is supplemented by a paragraph written as follows:
"When it is a reference sample referred to in section 44s of the Code of Criminal Investigation, the reference "MP" is added to the DNA code number."
Art. 8. In Article 4, § 1erParagraph 2 of the Act, replaced by the Act of 7 November 2011, is replaced by the following:
"1° the DNA profiles of the traces discovered in the context of criminal cases, transmitted in accordance with Article 44quater, § 3, of the Code of Criminal Investigation, except DNA profiles of traces discovered of missing persons and unidentified mortal remains;".
Art. 9. In the same Act, last amended by the Act of 7 November 2011, an article 4bis is inserted as follows:
"Art. 4bis. § 1er. It is created within the National Institute of Criminal Studies and Criminology a DNA data bank "Disappeared persons". This DNA data bank contains:
1° DNA profiles of traces discovered of missing persons or unidentified mortal remains, transmitted in accordance with Article 44quater, § 3, of the Code of Criminal Investigation;
2° the DNA profiles of reference samples of an ascendant, descendant or collateral of a missing person, transmitted in accordance with Article 44septies, § 3, of the Code of Criminal Investigation.
§ 2. The DNA profiles and data referred to in this article are erased from the DNA data bank "Disappeared persons" on the order of the Public Prosecutor if their retention in the data bank is not or is no longer useful for the search for the missing person concerned.
Unidentified DNA profiles and data related to them are, in any case, erased from the data bank in an automated manner thirty years after they were registered in this bank.
The person referred to in § 1er, 2°, may ask the King's Prosecutor to order the immediate destruction of his DNA profile and the data related to it.".
Art. 10. In section 5quater of the Act, inserted by the Act of 7 November 2011, the following amendments are made:
1° in § 1erthe words "articles 44quater, § 3, 44quinquies, § 8, 90undecies, § 7, of the Code of Criminal Investigation" are replaced by the words "articles 44quater, § 3, 44quinquies, § 8, 44septies, § 3, 90undecies, § 7, of the Code of Criminal Investigation";
2° the article is completed by a § written as follows:
§ 5. If this is a profile referred to in Article 44s of the Code of Criminal Investigation, the judge concerned may use the positive link only in the purpose referred to in Article 3, § 2.".
Art. 11. In Article 6, § 2, of the same law, amended by the law of November 7, 2011, the 1°, 2° and 3° are each time supplemented by the words "or the search for missing persons. ".
Art. 12. This Act comes into force on the first day of the eighteenth month following that of its publication to the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 21 December 2013.
PHILIPPE
By the King:
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Note
Senate (www.senate.be):
Documents: 5-1633.
Annales du Senate: July 18, 2013 and December 5, 2013.
House of Representatives (www.lachambre.be):
Documents: 53-2985.
Full report: 21 November 2013.