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7 NOVEMBER 2011. - 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 (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Amendments to the Code of Criminal Investigation
Art. 2. Section 44ter of the Code of Criminal Investigation, inserted by the Act of 22 March 1999, is replaced by the following:
"Art. 44ter. For the purposes of this Code:
1° DNA profile: an alphanumeric code specific to each individual and established exclusively from non-coding sequences of the genetic heritage;
2° reference sample: hair bulbs, oral or blood cells, taken from a person to establish his DNA profile;
3° DNA profile comparison: the comparison of genetic profiles of traces discovered with genetic profiles of reference samples, or the comparison of these profiles between them;
4° lab: a DNA analysis laboratory that meets the conditions of approval established by the King;
5° national DNA data banks: national DNA data banks "Crimistic" and "Convicted" managed by the National Institute of Criminalism and Crimeinology;
6° Manager of national DNA data banks: the person responsible for the management of national DNA data banks within the National Institute of Criminalism and Crimeinology;
7° foreign DNA data banks: DNA data banks created and managed by other European Union states and by countries with which a treaty would interchange DNA profiles for the purposes of criminal proceedings;
8° ADN code number: the unique reference number assigned by the national cell and which allows to connect a DNA profile to a person's name. »
Art. 3. In the same Code, an article 44quater is inserted as follows:
"Art. 44quater. § 1^er. The Crown Prosecutor may, by reason of decision, designate an expert attached to a laboratory to:
1° establish the DNA profile of the discovered traces,
2° compare, if any, the DNA profiles of the traces discovered between them.
The expert ensures that a sufficient fraction of the sample is preserved to allow for counter expertise. If this is impossible, it is in his report.
When the expert manages to preserve a sufficient fraction of the trace discovered to allow for counter-expertise, he shall ensure that the record is retained for a maximum of thirty years unless the competent magistrate orders another period of retention.
§ 2. The expert forwards to the King's Prosecutor a motivated report on the execution of his mission within a maximum of one month after receiving his mission and evidence.
However, the King's Prosecutor may grant an additional period of analysis upon the expert's reasoned request.
§ 3. Within fifteen days after the transmission of his report and unless the King's prosecutor decides otherwise, the expert shall forthwith communicate the DNA profiles obtained to the manager of the national DNA data banks for the purposes of Article 5quater, §§ 1^er3 and 4 of the Act of 22 March 1999 on the procedure for DNA identification in criminal matters.
It also provides the following data:
1° the record number of the repressive file;
2° the name and contact details of the magistrate in charge of the repressive file;
3° the name and contact information of the laboratory that has established the DNA profiles, as well as the reference of the expertise file and references of the DNA profiles;
4° the biological nature of the samples tested;
5° the sex of the person whose DNA profile has been established;
6° where applicable, the positive link between the DNA profiles obtained;
7° if applicable, the DNA code number. »
Art. 4. In the same Code, an article 44quinquies is inserted as follows:
"Art. 44quinquies. § 1^er. The Crown Prosecutor may, with the written consent of the person concerned, order the removal of a reference sample from a person who has attained the age of sixteen years against whom there are evidence of guilt in the commission of the facts of the case to which he is responsible, or in the commission of similar facts.
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 him:
1° of the circumstances of the case under which the removal is requested;
2° of the existence of evidence of his guilt in the commission of the facts of the case of which he is responsible, or in the commission of similar facts;
3°, if any, from the comparison of its DNA profile to the DNA profiles of the traces discovered in the case;
4° of the unique comparison of its DNA profile with the DNA profiles recorded in the national DNA data banks;
5° of the recording of its DNA profile in the DNA data bank "Crimistic", if the comparison of DNA profiles establishes a positive link with one of the DNA profiles referred to in the 3° or 4°;
6° in the event of the registration of its DNA profile, of the systematic comparison of its DNA profile with the DNA profiles recorded in national and foreign DNA data banks;
7° in case of a positive connection with one of the profiles referred to in 6°, of the registration of this link.
This information is referred to in the written agreement of the interested party.
§ 2. The King's Attorney requires a judicial police officer, an assistant to the King's Prosecutor, or a doctor to perform a smear or a smear of hair bulbs.
For blood removal, he can only require a doctor.
The judicial police officer, an assistant to the King's prosecutor, shall prepare a record of the sampling operation.
§ 3. If the person referred to in § 1^er has not reached the age of eighteen years, it must, for the application of §§ 1^er and 2, be accompanied by at least one of his or her parents, a lawyer or another person who is major in his or her choice.
§ 4. The King's Prosecutor designates an expert attached to a laboratory to:
1° establish the DNA profile of the reference sample;
2° make, if applicable, a comparison of this DNA profile with the DNA profiles of the traces discovered in this case.
§ 5. The expert forwards to the King's Prosecutor a motivated report on the execution of his mission within a maximum of one month after receiving his mission and evidence.
However, the King's Prosecutor may grant an additional period of analysis upon the expert's reasoned request.
§ 6. The result of the comparison of DNA profiles is notified to the data subject, in accordance with the terms fixed by the King.
The latter may, within a period of fifteen days from the notification, require the King's Prosecutor to conduct a counter-expertise by an expert attached to a laboratory she designates.
The counter-expertise is based on a new reference sample taken from the interested person and the fraction of the discovery trace that was not used during the first expertise, if not, based on the DNA extracted from the trace, if not based on the DNA profile of the trace established by the first expert.
The expert in charge of counter-intelligence shall forward his report to the King's Prosecutor within a period of up to one month after the reception of his mission and evidence. The result of counter-expertise is notified to the person concerned in accordance with the terms and conditions established by the King.
The costs of counter-expertise, estimated in accordance with the law relating to the costs of law enforcement, are advanced by the person concerned. If the counter-expertise does not confirm the result of the first analysis, the amount advanced by the interested party is reimbursed by the State.
§ 7. Unless otherwise decided by the King's Prosecutor, the expert who was responsible for establishing the DNA profile of the reference sample pursuant to § 4, 1°, shall forthwith communicate, within fifteen days after the transmission of his report, the DNA profile to the manager of the national DNA data banks, with a view to the application of Article 5quater, §§ 2 to 4, of the Law of 22 March 1999 concerning the identification procedure.
It also communicates the relevant data listed in Article 44quater, § 3, second paragraph.
§ 8. Without prejudice to § 7, and unless the King's prosecutor decides otherwise, the expert who was responsible for making the comparison referred to in § 4, 2°, and who established a positive link, shall forthwith communicate, within fifteen days after the transmission of his report, the DNA profile of the reference sample to the manager of the national DNA data banks, with a view to the application of Article 5quater, §§ 1^er3 and 4 of the above-mentioned law.
It also communicates the relevant data listed in Article 44quater, § 3, second paragraph, of the same law.
§ 9. Unless otherwise decided by the King's Prosecutor, the expert shall destroy the reference sample and the drift samples containing DNA, no later than six months after the transmission of his report. »
Art. 5. In the same Code, an article 44sexies is inserted as follows:
"Art. 44sexies. § 1^er. The Crown Prosecutor may, with the written consent of the person concerned, order the removal of a reference sample from a person who is not referred to in section 44quinquies and who has reached the age of sixteen.
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 him:
1° of the circumstances of the case under which the removal is requested;
2° of the comparison of its DNA profile with the DNA profiles of the traces discovered in this case;
3° because its DNA profile will not be transmitted to the manager of national DNA data banks for comparison or registration purposes.
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 results to the King's prosecutor, the notification of the results to the data subject, the counter-expertise and the destruction of the reference sample and the samples derived from it containing DNA, are carried out in accordance with Article 44quinquies, §§ 2 to 6 and § 9.
The quality of the person is communicated to the expert responsible for comparing the DNA profiles. »
Art. 6. Section 90undecies of the same Code, inserted by the Act of 22 March 1999, is replaced by the following:
"Art. 90undecies. § 1^er. Without prejudice to the application of Article 56, § 1^er, paragraph 3, of this Code, the examining magistrate may order the removal of a reference sample from a person against whom there is evidence of guilt in the commission of the facts before him, if the facts are punishable by a maximum sentence of five years imprisonment or a heavier sentence.
In his reasoned order, which he communicates to the King's Prosecutor, the investigating judge states:
1 the circumstances of the case in which the removal is ordered;
2° the existence of clues of his guilt in the commission of the facts before him;
3° the need to resort to coercion;
4° where applicable, the comparison of the DNA profile with the DNA profiles of the traces discovered in this case;
5° the unique comparison of the DNA profile with the DNA profiles recorded in the national DNA data banks;
6° in case of a positive connection with one of the DNA profiles referred to in 4° or 5°, the registration of its DNA profile in the DNA data bank "Crimistic";
7° in the event of the registration of the DNA profile, the systematic comparison of its DNA profile with the DNA profiles registered in national and foreign DNA data banks;
8° in case of a positive connection with one of the profiles referred to in 7°, of the registration of this link.
Before ordering the debit under constraint, the examining magistrate shall hear the person who shall be subject to it, and shall inform him of the 1° to 8° listed in paragraph 2.
The reasons for the possible refusal of withdrawal or the consent of the person concerned to this measure are taken by the examining magistrate in the minutes of the hearing.
§ 2. The investigating judge requires a judicial police officer, auxiliary to the King's prosecutor, or a doctor to perform the oral smears or the removal of hair bulbs.
For blood removal, he can only require a doctor.
The judicial police officer, an assistant to the King's prosecutor, shall prepare a record of the sampling operation.
If the measure is to be carried out under physical restraint, it is carried out by police officers under the order of a judicial police officer, auxiliary to the King's Prosecutor. In this case, blood removal is prohibited.
§ 3. If the person referred to in § 1^er has not reached the age of eighteen years, it must, for the application of §§ 1^er and 2 be accompanied by at least one of his parents, by a lawyer or by another person of his or her choice.
§ 4. The investigating judge designates an expert attached to a laboratory to:
1° establish the DNA profile of the reference sample;
2° make, if applicable, a comparison of this DNA profile with the DNA profiles of the traces discovered in this case.
§ 5. The expert shall transmit to the investigating judge a reasoned report on the execution of his or her mission within a period of up to one month after receiving his or her mission and evidence.
However, the examining magistrate may grant an additional period of analysis upon the expert's reasoned request.
§ 6. Unless otherwise decided by the investigating judge, the expert who was responsible for establishing the DNA profile of the reference sample pursuant to § 4, 1°, shall forthwith communicate, within fifteen days after the transmission of his report, the DNA profile of the reference sample to the manager of the national DNA data banks, with a view to the application of Article 5quater, §§ 2 to 4, of the law of 22 March 1999
It also communicates the relevant data listed in Article 44quater, § 3, second paragraph.
§ 7. Without prejudice to § 6, and unless otherwise determined by the investigating judge, the expert who has been charged with making the comparison referred to in § 4, 2°, and who has established a positive link, shall forthwith communicate, within fifteen days after the transmission of his report, the DNA profile of the reference sample to the manager of the national DNA data banks, with a view to the application of Article 5quater, §§ 1^er3 and 4 of the above-mentioned law.
It also communicates the relevant data listed in Article 44quater, § 3, second paragraph of the same law.
§ 8. The notification of the results to the data subject, the counter expertise, as well as the destruction of the reference sample and samples derived from it containing DNA, shall be carried out in accordance with Article 44quinquies, §§ 6 and 9. »
Art. 7. In the same Code, an article 90duodecies is inserted as follows:
"Art. 90duodecies. § 1^er. Where the facts before it are punishable by a maximum sentence of five years' imprisonment or a heavier sentence, and if there are indications that the person concerned has a direct connection to the judicial investigation, the examining magistrate may order the removal, under duress, of a reference sample on a person who is not referred to in section 90undecies.
In his reasoned order that he communicates to the Crown Prosecutor, the examining magistrate states:
1 the circumstances of the case in which the removal is ordered;
2° the need to resort to coercion;
3° the comparison of the DNA profile with the DNA profiles of the traces discovered in this case;
4° the fact that the DNA profile will not be transmitted to the manager of national DNA data banks for comparison or registration purposes.
§ 2. Before ordering the debit under constraint, the examining magistrate shall hear the person who shall be subject to it, and shall inform him of the 1st to 4th listed in § 1^erParagraph 2.
The reasons for the possible refusal of withdrawal or the consent of the person to this measure are taken by the examining magistrate in the transcript.
§ 3. The collection, the establishment of the DNA profile of the reference sample, the comparison of the DNA profiles, the transmission of the results to the investigating judge, the notification of the results to the data subject, the counter expertise, and the destruction of the reference sample and the samples derived from it containing DNA, are carried out in accordance with Article 90undecies, §§ 2 to 5 and § 8.
The quality of the person is communicated to the expert responsible for compiling the DNA profile comparison. »
Art. 8. In the same Code, an article 158quinquies read as follows:
"Art. 158quinquies. The court may, in the interest of the manifestation of the truth, upon the requisition of the King's Prosecutor, upon request of one of the parties or ex officio, invite the King's Prosecutor to request an investigating judge for the purposes of:
1° to establish the DNA profile of the discovered traces and, if applicable, to make a comparison of DNA profiles, pursuant to section 44quater;
2° to collect a reference sample from the accused, establish the DNA profile of the sample and, if applicable, make a comparison of DNA profiles pursuant to section 90undecies;
3° to collect a reference sample from another person, establish the DNA profile of that sample and, if applicable, make a comparison of DNA profiles pursuant to section 90duodecies. »
Art. 9. In the same Code, an article 190quater is inserted as follows:
"Art. 190quater. The court may, in the interest of the manifestation of the truth, upon the requisition of the King's Prosecutor, upon request of one of the parties or ex officio, invite the King's Prosecutor to request an investigating judge for the purposes of:
1° to establish the DNA profile of the discovered traces and, where applicable, to make a comparison of the DNA profiles, pursuant to section 44quater;
2° to collect a reference sample from the accused, establish the DNA profile of the sample and, if applicable, make a comparison of the DNA profiles, pursuant to section 90undecies;
3° to collect a reference sample from another person, establish the DNA profile of that sample and, if applicable, make a comparison of the DNA profiles pursuant to section 90duodecies. »
CHAPTER 3. - Amendments to the Act of 22 March 1999 relating to DNA identification procedure in criminal matters
Art. 10. Section 2 of the Act of 22 March 1999 on the procedure for identifying DNA in criminal matters is replaced by the following:
“Art. 2. For the purposes of this Act, the following means:
1° DNA profile: an alphanumeric code specific to each individual and established exclusively from non-coding sequences of the genetic heritage;
2° reference sample: hair bulbs, oral or blood cells, taken from a person to establish his DNA profile;
3° DNA profile comparison: the comparison of genetic profiles of traces discovered with genetic profiles of reference samples, or the comparison of these profiles between them;
4° lab: a DNA analysis laboratory that meets the conditions of approval established by the King;
5° national DNA data banks: national DNA data banks "Crimistic" and "Convicted" managed by the National Institute of Criminalism and Crimeinology;
6° foreign DNA data banks: DNA data banks created and managed by other European Union states and by countries with which a treaty would interchange DNA profiles for the purposes of criminal proceedings;
7° point of contact: a national point of contact designated by each Member State pursuant to Article 15 of Decision 2008/615/JAI of the Council of the European Union of 23 June 2008 on the deepening of cross-border cooperation, in particular with a view to combating terrorism and cross-border crime, or by other countries with which a treaty would involve the exchange of DNA profiles;
8° ADN code number: the unique reference number assigned by the national cell and which allows to connect a DNA profile to a person's name;
9° Manager of national DNA data banks: the person responsible for the management of national DNA data banks within the National Institute of Criminalism and Crimeinology »;
10° automated consultation: online access to foreign DNA data banks;
11° data indexed DNA: DNA profile and a reference. »
Art. 11. Section 3 of the Act is replaced by the following:
"Art. 3 DNA analysis and the comparison of DNA profiles can only be performed in criminal proceedings, in order to identify directly or indirectly the persons involved in the commission of an offence, to lift the suspicions that weigh on other persons or to prove their innocence. »
Art. 12. In the same law, a new article 3bis is inserted, which reads as follows:
"Art. 3bis. § 1^er. With the Public Prosecutor's Office, it is created a national cell that is responsible for assigning DNA code numbers. The national cell is placed under the authority of a public prosecutor's magistrate appointed by the Minister of Justice, on the advice of the College of Attorneys General, for a term of five years. This term is renewable twice.
On the proposal of the College of Attorneys General, the Minister of Justice can put an end to the mission of the judge for breach of his obligations.
This magistrate has the powers of a King's Prosecutor as part of the legislative provisions on DNA analysis in criminal matters.
This national cell is available to the judicial personnel referred to in Part II, Book I, Title III, of the Judicial Code. The judicial personnel responsible for a mission retain their treatment and benefits.
§ 2. Pursuant to sections 44quater, 44quinquies and 90undecies of the Code of Criminal Investigation and sections 4, 5, 5bis and 5ter of this Act, the national cell is responsible for the coordination of activities subject to the centralization and management of DNA code numbers, including:
1° the allocation of DNA code numbers;
2° the management of a data bank containing administrative data related to DNA code numbers;
3° the coordination and management of exchanges and transfers of information relating to the comparison of data recorded in national DNA data banks between the service managing national DNA data banks, the judges concerned and the accredited laboratories;
4° the coordination and management of reference samples and missions concerning DNA analysis of convicts;
5° the writing of the pro justitia revealing the concordance between the DNA code number and the name of the data subject;
6° advising the College of Attorneys General on criminal policy relating to DNA identification procedure in criminal matters.
§ 3. The DNA code number as defined in Article 2 shall be assigned by the national cell to each reference sample taken in accordance with Articles 44quinquies and 90undecies of the Code of Criminal Investigation and Article 5 of this Law, upon request of the Crown Prosecutor or the investigating judge before the DNA analysis is commenced. »
Art. 13. Section 4 of the Act is replaced by the following:
“Art. 4. § 1^er. It is created, within the National Institute of Criminalistics and Crimeinology, a DNA data bank « Criminalistic ».
This DNA data bank contains:
1° DNA profiles of traces discovered in criminal cases, transmitted in accordance with Article 44quater, § 3, of the Code of Criminal Investigation;
2° DNA profiles of reference samples, transmitted in accordance with articles 44quinquies, § 8 and 90undecies, § 7 of the same Code;
3° the DNA profiles of reference samples for which a positive link is established in accordance with Article 5quater, § 2, paragraph 2, of this Law.
4° for each DNA profile referred to in points 1 to 3, the data listed in Article 44quater, § 3, paragraph 2, of the same Code;
5° the data referred to in Articles 5quater, § 3, and 8, § 3, of this Law.
The DNA profiles of the reference samples referred to in 2° and 3° can only be recorded in the DNA data bank "Crimistic" under their DNA code number.
§ 2. The DNA profiles and related data referred to in this article are erased from the Criminalistic DNA data bank on the order of the Public Prosecutor's Office, provided that their retention in the data bank is not or is no longer useful for the purposes of criminal proceedings.
The DNA profiles and related data are anyway deleted from the data bank, as the case may be:
1° automatically, thirty years after they were registered in the data bank, for DNA profiles that were not identified;
2° on the order of the Public Prosecutor's Office, as soon as a judicial decision cast in force of evidence has taken place in the file for which the DNA profile was obtained, for the DNA profiles that were identified.
A person who has been subjected to an acquittal or non-lieu coulé en force deed may request the King's Prosecutor to order the immediate deletion of his DNA profile and related data. »
Art. 14. Section 5 of the Act is replaced by the following:
“Art. 5. § 1^er. It is created within the National Institute of Criminalism and Crimeinology a DNA data bank "Convicted".
This DNA data bank contains the DNA profiles of persons who, by a judicial decision cast as a force of action, have been sentenced to work, imprisonment or a heavier sentence, or have been subjected to an interfering measure, for committing one of the offences referred to in paragraph 3.
Makes a record in the DNA data bank, the offences involved:
1° to articles 136bis to 136septics of the Criminal Code;
2° to articles 137 to 141 of the same Code;
3° to articles 322 to 324ter of the same Code;
4° to article 347bis of the same Code;
5° to articles 372 to 378 of the same Code;
6° to articles 379, 380, §§ 1^er 5, and 381, of the same Code;
7° to Article 383bis, §§ 1^er and 3 of the same Code;
8° to articles 393 to 397 of the same Code;
9° to articles 400 and 401, of the same Code;
10° to articles 417ter and 417quater of the same Code;
11° to articles 428 to 430 of the same Code;
12° to articles 433sexies to 433octies of the same Code;
13° to articles 467, paragraph 1^er471 to 475 of the same Code;
14° to article 477sexies of the same Code;
15° to articles 518, 531 and 532 of the same Code;
16° to articles 77ter, 77quater and 77quinquies of the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens;
17° to Article 2bis, § 3, b, and § 4, b, of Law 24 February 1921 concerning the trafficking of poisonous, soporific, disinfectant or antiseptic substances.
The conviction for an attempt to commit one of these offences also leads to a registration in the DNA data bank.
The data relating to the aforementioned DNA profiles, which are listed in articles 5bis, paragraph 2, 5ter, § 3, paragraph 2, 5quater, § 3, and § 8, § 3, are also registered in the DNA data bank.
The DNA profiles of the reference samples can only be recorded in the "Convicted" data bank under their DNA code number.
§ 2. DNA profiles and related data are automatically erased from the DNA data bank "Convicted" thirty years after their registration, unless the competent magistrate has set a shorter time limit.
They are also erased when, having filed opposition within the extraordinary period of opposition, the convict or internee is acquitted of the head of the offences that justified the registration of his DNA profile in the DNA data bank "Convicted", or when the decision of conviction or internment is cancelled following a review procedure. »
Art. 15. In the same law, a new section 5bis is inserted, as follows:
"Art. 5bis. If, after consultation with the national cell, it appears that the DNA profile of the convict or internee has already been established, the convict is informed by the King's prosecutor by judicial fold:
1° of the recording of its DNA profile in the DNA data bank "Convicted";
2° of the systematic comparison of its DNA profile with the DNA profiles recorded in national and foreign DNA data banks;
3° in case of a positive connection with one of the DNA profiles referred to in 2°, of the registration of this link.
The laboratory concerned shall, on the order of the Crown Prosecutor, communicate to the manager of the national DNA data banks, the DNA profile of the convict or internee, and the related data listed in Article 44quater, § 3, paragraph 2, of the Code of Criminal Investigation, so that they are registered in the DNA data bank "Convicted". »
Art. 16. In the same Act, a new section 5ter is inserted, as follows:
"Art. 5ter. § 1^er. If, after consultation with the national cell, it appears that the DNA profile of the convict or internee has not yet been established, the Crown Prosecutor orders, if necessary under duress, the removal of a reference sample from that person.
Before the removal is made, the Crown Prosecutor or a judicial police officer, auxiliary to the King's Prosecutor, shall communicate to the person concerned the information referred to in section 5bis, paragraph 1^er.
§ 2. The King's Attorney requires a judicial police officer, an assistant to the King's Prosecutor, or a doctor to conduct the removal.
For blood removal, he can only require a doctor.
The sampling operation shall be recorded in a report prepared by the judicial police officer, auxiliary to the King's prosecutor.
If the measure is to be carried out under physical restraint, it is carried out by police officers under the order of a judicial police officer, auxiliary to the King's Prosecutor. In this case, blood removal is prohibited.
§ 3. The King's Prosecutor designates an expert attached to a laboratory to establish the DNA profile of the reference sample.
Within a maximum period of one month after the receipt of his mission and the reference sample, the expert shall forthwith communicate to the manager of national DNA data banks, the DNA profile obtained and the related data listed in Article 44quater, § 3, paragraph 2, of the Code of Criminal Investigation, so that they are registered in the DNA data bank "Convicted".
The expert immediately destroys the reference sample and the drift samples containing DNA. »
Art. 17. In the same Act, an article 5quater is inserted as follows:
"Art. 5quater. § 1^er. Upon receipt, the manager of the national DNA data banks or his delegate shall record the DNA profiles transmitted to him in accordance with articles 44quater, § 3, 44quinquies, § 8, 90undecies, § 7, of the Code of Criminal Investigation and articles 5bis, paragraph 2, and 5ter, § 3, paragraph 2, of this Act, and compare them with the DNA profiles recorded in the national DNA data banks.
§ 2. The manager of the national DNA data banks or his delegate only compares the DNA profiles that were transmitted to him in accordance with articles 44quinquies, § 7, 90undecies, § 6, of the Code of Criminal Investigation, with the DNA profiles recorded in the national DNA data banks.
If a positive link is established, the DNA profiles concerned are registered in the DNA data bank.
§ 3. When the comparison referred to in § 1^er or § 2 establishes a positive link, the following data is recorded with the relevant DNA profile:
1° the positive link;
2° if applicable, the DNA code number.
§ 4. Within a maximum period of fifteen days after receipt of the DNA profiles referred to in §§ 1^er and 2, the manager of national DNA data banks or his delegate shall forthwith notify the result of the comparison of DNA profiles to the competent magistrates:
1° by a circumstantial notification when a positive link is obtained;
2° by simple notification if the comparison does not establish concordance.
This notification shall be forwarded in writing to the judge concerned.
This notification must be made via the national cell when a positive link to a DNA code number was found during the comparison.
In this case, the national cell establishes a pro justitia as referred to in Article 3bis, § 2, 5°, in order to communicate the name of the data subject to which the DNA code number revealed by the comparison is assigned. He attached this pro justitia to the written notification of the manager of national DNA data banks or his delegate and transmitted these documents immediately to the requesting magistrate.
Where applicable, only competent judges may, via the national cell, be aware of the identity of the person to whom the relevant DNA profile recorded in the national DNA data banks relates and decide to use it in a criminal investigation. »
Art. 18. In section 6 of the Act, the following amendments are made:
1° to § 1^er, the words "of the results of the DNA analysis, within the meaning of Article 44ter, § 1^erParagraph 1^er, the Code of Criminal Investigation are replaced by the words "the result of the comparison of DNA profiles";
2° in § 2, 2°, the words "from the results of the DNA analysis, within the meaning of Article 44ter, § 1^erParagraph 1^er, the Code of Criminal Investigation are replaced by the words "the result of the comparison of DNA profiles";
3° to § 2, the 3° is replaced by the following:
"3° will have used the traces discovered or reference samples and the samples derived from them containing DNA for other purposes than for the purposes of criminal proceedings";
4° in § 3, the words "NAD analysis, within the meaning of Article 44ter, § 1^erParagraph 1^er, of the Code of Criminal Investigation," are replaced by the words "DNA profile comparison".
Art. 19. In section 7 of the Act, paragraph 1^er is replaced by the following:
"The King determines the composition and status of the staff and the organization of the national cell, as well as the modalities for the processing of trace discoveries, the collection of reference samples, the conservation, the DNA analysis, the destruction of reference samples and the drifting samples containing DNA, the execution of a counter-expertise, and the conditions of accreditation to which the registered Belgian and foreign laboratories must satisfy, as well as the notifications of national banks and »
Art. 20. Section 8 of the Act is replaced by the following:
“Art. 8. § 1^er. In criminal matters, the manager of national DNA data banks or his delegate has the exclusive competence of the exchange of DNA indexed data recorded in national DNA data banks, with foreign contact points, with a view to conducting automated DNA profile consultations and comparisons.
§ 2. For the purposes of investigation of criminal offences, foreign contact points may automatically consult the DNA indexed data recorded in national DNA data banks for DNA profile comparison purposes. This automated consultation is only possible on a case-by-case basis.
For the purpose of investigating criminal offences, the manager of national DNA data banks or his delegate may transmit unidentified DNA profiles to foreign contact points for the purpose of comparing the DNA indexed data recorded in foreign DNA data banks. Transmission and comparison are automated.
If an automated consultation or comparison establishes a positive link between a transmitted DNA profile and the DNA profiles registered in national DNA data banks, the manager of national DNA data banks or his delegate automatically communicates DNA indexed data for which a positive link has been established. If no positive link can be established, notification is made automatically.
§ 3. Without prejudice to § 2, third paragraph, the manager of national DNA data banks or his delegate shall, within a maximum period of fifteen days from the validation of the positive link, communicate the following information at the foreign contact point:
1° the DNA profile of the discovery trace, the convict or the internee;
2° the reference of this DNA profile;
3° the name and contact information of the competent prosecutor ' s office;
4° the reference of the file to the National Institute of Criminalism and Crimeinology;
5° if applicable, the ADN code number;
excluding any other data.
The manager of national DNA data banks or his delegate informs the competent prosecutor of the positive link within a maximum of fifteen days from the validation of the link, and communicates the following data:
1° the references of this DNA profile communicated by the foreign contact point;
2° the country originating from the DNA profile;
3° the name and contact details of the foreign contact point;
4° if applicable, the DNA code number.
§ 4. The positive link and data referred to in § 3, paragraph 2, 1° to 3° are recorded with the relevant DNA profile.
§ 5. Without prejudice to the application of the Act of 8 December 1992 on the protection of privacy with respect to personal data processing, the manager of national DNA data banks shall ensure compliance with the requirements for the protection and deletion of data exchanged with foreign contact points as provided for in this Act, and shall annually transmit a report thereon to the Privacy Commission. »
Art. 21. In the same law, a new section 8bis is inserted as follows:
"Art. 8bis. Designated experts attached to a laboratory can only perform DNA profile comparisons for which they received a specific mission.
Without prejudice to the first paragraph, laboratories may retain DNA data by means of electronic archiving at the end of being able to ensure traceability in all circumstances for judicial purposes. These data are erased after thirty years, unless the competent magistrate has set a shorter time limit.
The National Institute of Criminalism and Crimeinology is the only body authorized to record in national DNA data banks and to compare DNA profiles of discovered traces and DNA profiles of reference samples obtained in different files, in accordance with articles 5quater and 8. »
Art. 22. In the same Act, a new section 8ter is inserted as follows:
"Art. 8ter. The provisions of Article 5 are also applicable to persons who, by a judicial decision cast as a force of a matter tried, have been sentenced to work, imprisonment or a heavier sentence or have been ordered to interfere for committing one of the offences referred to in Article 5, § 1^erparagraphs 3 and 4, before the date of entry into force of this Act, and who suffer the penalty or measure or who is still to be subjected to it.
In this case, it is carried out in accordance with articles 5bis and 5ter. Where applicable, the DNA profile of these persons will be established during their deprivation of liberty due to the conviction or the detention measure. »
CHAPTER 4. - Final provisions
Art. 23. § 1^er. No later than six months after the coming into force of this Act, laboratories shall destroy the reference samples and the samples derived from them containing DNA, which they have retained since the coming into force of the Act of 22 March 1999 on the DNA-analysis identification procedure in criminal matters, with respect to records in which their mission is finalized.
§ 2. The provisions of section 5quater of the Act of 22 March 1999 relating to the DNA identification procedure in criminal matters are immediately applicable to DNA profiles that were transmitted to the manager of national DNA data banks prior to the date of entry into force of this Act.
Art. 24. The King shall determine the date on which this Act comes into force.
Promulgation of this Act, order that it be coated with the seal of the State and published by the Belgian Monitor
Given in Brussels, 7 November 2011.
ALBERT
By the King:
Minister of Justice,
S. DE CLERCK
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
(1) Session 2010/2011.
House of Representatives.
Documents. - Bill, 53-1504 - No. 1. - Amendments, 53-1504 - No. 2. - Report, 53-1504 - No. 3. - Text adopted by the commission, 53-1504 - No. 4. - Text adopted in plenary and transmitted to the Senate, 53-1504 - No. 5.
Full report. - 20 July 2011.
Session 2011/2012.
Senate.
Documents. - Project not referred to by the Senate, 5-1186 - No. 1.