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22 MARCH 1999. - DNA Identification Procedures Act (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. An article 44ter, as follows, is inserted in Book I, Chapter IV, Section II, of the Code of Criminal Investigation:
"Art. 44ter. § 1^er. The DNA comparison analysis within the meaning of this code is intended only to compare DNA profiles of samples of human cells found or collected in order to be able to identify directly or indirectly persons affected by an offence.
This comparison analysis can only cover non-coding DNA segments.
§ 2. The King's Prosecutor may, by reason of decision, designate an expert attached to a laboratory approved by the King to draw a DNA profile of traces discovered by human cells. The expert ensures that a sample of traces of human cells is preserved to allow for counter-experts. If this is impossible, it is in his report.
The expert presents a motivated report on the execution of his mission.
The DNA profiles obtained, as well as the data on these DNA profiles, listed in paragraph 4, are communicated on the order of the Public Prosecutor's Office to the National Institute of Criminalism and Crimeinology to be retained and processed.
These data are:
1° the record number of the repressive file;
2° the name of the magistrate in charge of the repressive file;
3° the coordinates of the laboratory that established the DNA profile and the file number;
4° the biological nature of the trace;
5° the sex of the person whose trace originates;
6° where applicable, the code number assigned by the magistrate and allowing to connect the DNA profile to the person concerned.
§ 3. The King's Attorney may, in the interest of information, ask a major person to take a quantity of blood, cheek mucous membranes or hair bulbs from his or her choice.
The King's prosecutor can only make such a levy if at least a trace of human cells has been discovered and collected as part of the case before him.
The agreement of the interested party can only be given if the King's prosecutor informed the King of the circumstances of the case.
The King's prosecutor also informs the interested party that if the DNA comparison analysis establishes a positive link with the DNA profile of the trace concerned, his profile may be linked, in the DNA data bank "Crimistic" to the profiles of other traces discovered in other criminal cases.
This information is referred to in the written agreement of the interested party.
The King's Attorney requires a judicial police officer, an auxiliary officer of the King's Prosecutor, or a doctor for a buccal smear or a hair bulb.
To collect blood, he can only require a doctor.
The judicial police officer, auxiliary officer of the King's Attorney, shall prepare minutes of the sampling operation.
The King's Prosecutor designates an expert attached to a laboratory approved by the King to establish the DNA profile of the sample taken and perform a DNA comparison analysis.
The expert in charge of the DNA comparison analysis transmits his report within noante days of receiving the King's Prosecutor's request.
However, the King's Prosecutor may grant an additional period of analysis upon the expert's reasoned request.
§ 4. The result of the DNA analysis is, in accordance with the terms established by the King, brought to the attention of the person concerned. 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 designated by the interested party and attached to a laboratory accredited by the King. The expert submits a report to the King's Prosecutor who informs the person concerned in accordance with the terms set by the King.
The counter-expertise is based on a new sample of human cells taken from the individual and based on the part of the human cell trace that was not used during the first experiment.
If the report on the first expertise reveals that the amount of traces of human cells discovered is insufficient to form a new DNA profile, the counter-expertise is based on a new sample of human cells taken from the interested person and based on the DNA profile of the trace discovered by the first expert.
The costs of counter-expertise, which are limited to the amount determined by a royal decree deliberated in the Council of Ministers, are borne by the person who requested counter-expertise. 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.
§ 5. The expert destroys the sample of cells taken as soon as it is informed by the Public Prosecutor's Office either of the absence of a counter-experts, or of the fact that the result of the counter-experts has been brought to the attention of the individual.
In the month following this communication by the Public Prosecutor's Office, the expert informs the Public Prosecutor that the sample of collected cells was destroyed.
Art. 3. In Book I, Chapter VI, Section II, Distinction II, of the same Code, it is inserted a § 7, entitled "From DNA Analysis", containing an article 90undecies, as follows:
"Art. 90undecies. § 1^er. Without prejudice to the application of Article 56, § 1^er, paragraph 3, of this Code, the examining magistrate may order, in the interest of the instruction, that a sample of human cells be taken from a person for purposes of a DNA comparison analysis, if the fact for which he is seized is an offence for which a maximum sentence of five years' imprisonment or a heavier penalty is provided.
Sampling can only be ordered if the investigating judge has clues that the target person has a direct connection to the realization of the facts.
The investigating judge may order such a withdrawal only if at least a trace of human cells has been discovered and collected in the course of the case before him.
The agreement of the interested party is not required for the performance of the measure.
This action is previously the subject of a reasoned order from the investigating judge that he communicates to the King's prosecutor.
§ 2. Before ordering a DNA analysis, the investigating judge hears the person who is subject to it.
The investigating judge informs him of the circumstances of the case and the fact that his DNA profile can be linked, in the Criminalistic data bank, to the profiles of other traces discovered in other criminal cases.
The reasons for the possible refusal of the deduction or the consent of the person concerned to this measure are included in the record of the investigating judge.
§ 3. The investigating judge requires a judicial police officer, an auxiliary officer of the King's Prosecutor or a doctor for the oral smears or the removal of hair bulbs.
To collect blood, he can only require a doctor.
The person responsible for sampling removes a sufficient quantity to allow for counter-experts.
The judicial police officer, auxiliary officer of 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 exercised by police officers under the order of the judicial police officer. In this case, blood removal is prohibited.
The investigating judge designates an expert attached to a laboratory approved by the King to establish the DNA profile of the sample taken and perform a DNA comparison analysis.
The expert in charge of the DNA comparison analysis transmits his report within noante days of receipt of the request of the investigating judge.
The expert may, however, grant an additional period of analysis upon the expert's reasoned request.
§ 4. The result of the DNA analysis is, in accordance with the terms established by the King, brought to the attention of the person concerned. The latter may, within a period of fifteen days from the notification, require the investigating judge to conduct a counter-experts by an expert designated by the interested party attached to a laboratory approved by the King. The expert submits a substantiated report to the examining magistrate who informs the person concerned in accordance with the terms set by the King.
The counter-expertise is based on a new sample of human cells taken from the individual and based on the part of the human cell trace that was not used during the first experiment. If the report on the first expertise reveals that the amount of traces of human cells discovered is insufficient to form a new DNA profile, the counter-expertise is based on a new sample of human cells taken from the interested person and based on the DNA profile of the trace discovered by the first expert.
The costs of counter-expertise, which are limited to the amount determined by a royal decree deliberated in the Council of Ministers, are borne by the person who requested counter-expertise. 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.
§ 5. The expert destroys the sample of cells taken as soon as it is informed by the Public Prosecutor's Office either of the absence of a counter-experts, or of the fact that the result of the counter-experts has been brought to the attention of the individual.
In the month following this communication by the Public Prosecutor's Office, the expert informs the Public Prosecutor that the sample of collected cells was destroyed.
Art. 4. § 1^er. It is created within the National Institute of Criminalistics and Crimeinology a DNA data bank « Criminalistic ».
This data bank contains the DNA profiles of traces discovered by human cells, obtained in accordance with Article 44ter of the Code of Criminal Investigation, as well as the data listed in § 2, paragraph 4, of the same article, § 3, paragraph 4, of this Article, and Article 5, § 4, paragraph 4, of this Law.
§ 2. This data can only be used for the purpose of establishing a link between DNA profiles of traces of human cells discovered or between them and DNA profiles of samples taken from individuals under sections 44ter and 90undecies of the Code of Criminal Investigation.
§ 3. The Public Prosecutor's Office or the examining magistrate, as the case may be, by reason of decision, order an expert attached to the National Institute of Criminalism and Crimeinology to compare the DNA profile of the traces of discovered cells or the DNA profile of the sample of human cells collected with the data contained in the data bank.
Where applicable, only the Public Prosecutor's Office or the investigating judge may be aware of the identity of the person to whom the relevant DNA profiles of the data bank relate.
The expert presents a motivated report on the execution of his mission. In the event that the comparison establishes a positive link with other DNA profiles stored in the data bank, it shall inform the competent magistrates on its own motion.
The following data concerning the results of this comparison are also recorded with the relevant DNA profile data of the data bank:
1° where applicable, the positive link with other DNA profiles stored in the data bank;
2° where applicable, the code number assigned by the magistrate and linking the DNA profile to the person concerned.
§ 4. 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° 30 years after they were registered in the data bank for DNA profiles that were not identified;
2° as soon as a judicial decision passed in force of a finding intervened in the file for which the DNA profile was obtained, for the DNA profiles that were identified.
Art. 5. § 1^er. It is created within the National Institute of Criminalism and Crimeinology a DNA data bank "Convicted".
This data bank contains the DNA profile of each person who, for committing one of the offences referred to in paragraph 3, has been permanently sentenced to imprisonment or to a heavier penalty, as well as to each person in respect of whom a measure of interment has been ordered on a final basis for committing one of these offences.
Makes a registration in the data bank, the offences referred to:
1° to article 347bis of the Criminal Code;
2° to articles 368 and 369 of the same Code;
3° to articles 372 to 378 of the same Code;
4° to articles 393 to 397 of the same Code;
5° to articles 400 and 401 of the same Code;
6° to Article 438 of the same Code;
7° to articles 471 to 475 of the same Code;
8° to Article 477sexies of the same Code;
9° to articles 518, 531 and 532 of the same Code.
The data concerning these DNA profiles referred to in Article 44ter, § 2, paragraph 4, of the Code of Criminal Investigation are also recorded in this data bank.
§ 2. If, as part of the proceedings leading to the conviction or the decision to interfere, a DNA profile of the person concerned has been drawn up, this DNA profile is recorded in the DNA data bank on order of the public prosecutor.
The person concerned is informed of the registration referred to in this article and that DNA profiles of traces of human cells discovered in other criminal cases may be compared to the profile recorded in the "Convicted" data bank.
If, in the course of the proceedings leading to the conviction or the decision to interfere, the DNA profile of the person concerned has not been established, the Public Prosecutor's Office requires a judicial police officer, an auxiliary officer of the King's Prosecutor, or a doctor to perform a buccal smear or a collection of hair bulbs.
For blood removal, he can only require a doctor.
The judicial police officer, auxiliary officer of the King's Attorney, shall prepare minutes of the sampling operation.
If the measure is to be carried out under physical restraint, it is exercised by police officers under the order of the judicial police officer. In this case, blood removal is prohibited.
The individual is informed of the registration of his DNA profile in the "Convicted" data bank and that the DNA profile of traces of human cells discovered in other criminal cases may be compared to this profile recorded in the "Convicted" data bank.
The Public Prosecutor ' s Office designates an expert attached to one of the laboratories authorized by the King to establish the DNA profile of the convict or internee and submit a substantiated report of his mission. The result is recorded in the data bank "Convicted".
The expert immediately destroys the sample of collected cells. In the month, it informs the Public Prosecution Service that the sample of collected cells was destroyed.
§ 3. The use of this data is limited exclusively in order to be able to identify directly or indirectly persons involved in an offence.
§ 4. The Public Prosecutor's Office or the examining magistrate, as the case may be, by reason of a decision, order an expert attached to the National Institute of Criminalism and Crimeinology to compare the DNA profile of traces discovered by human cells with the data contained in the data bank.
Where applicable, only the Public Prosecutor's Office or the investigating judge may be aware of the identity of the person to whom the relevant DNA profiles of the data bank relate.
The expert presents a motivated report on the execution of his mission.
The following data are also recorded with the relevant DNA profiles of the Criminalistic Data Bank:
1° where applicable, the positive link with other DNA profiles stored in the data bank;
2° where applicable, the code number assigned by the magistrate and linking the DNA profile to the person concerned.
If the comparison with other DNA profiles stored in the data bank provides a positive link, the expert shall forthwith inform the competent judges in this regard.
§ 5. Data from the DNA data bank "Sentenced" are erased by order of the Public Prosecutor's Office ten years after the death of the person to whom they relate.
Art. 6. § 1^er. Will be punished by imprisonment from six months to one year and a fine of two hundred francs to ten thousand francs, or only one of these penalties, who, without being authorized to do so, knowingly has learned of the results of the DNA analysis, within the meaning of Article 44ter, § 1^erParagraph 1^erCriminal Code.
§ 2. Will be punished by imprisonment from six months to two years and a fine of two hundred francs to twenty thousand francs, or only one of those penalties, who:
1°, while he knew that certain data had been obtained by the commission of the offence referred to in § 1^erknowingly used data for purposes other than criminal proceedings;
2° or, as authorized, will have read the results of the DNA analysis, within the meaning of Article 44ter, § 1^erParagraph 1^erthe Code of Criminal Investigation and knowingly used them for other purposes than for the purposes of criminal proceedings;
3° or, will have used samples of traces of human cells discovered or samples taken for purposes other than for the purposes of criminal proceedings.
§ 3. Will be punished by imprisonment from six months to five years and a fine of 500 francs to 50,000 francs or only one of these penalties, who knowingly conducts or conducts a DNA analysis, within the meaning of Article 44ter, § 1^erParagraph 1^er, the Code of Criminal Investigation, excluding the cases provided by law or without complying with the formalities prescribed by law.
§ 4. The provisions of Book 1 of the Criminal Code, including Chapter VII and Article 85, shall apply to offences under this section.
Art. 7. The King determines the procedures for the treatment of cell sample traces, the removal of cell samples from a person concerned by an offence, the conservation, analysis and, where applicable, the destruction of cell samples, the execution of a counter-expertise, the aggregation of laboratories and the possibility of obtaining foreign laboratories, as well as the manner in which DNA data is recorded, processed and used.
After the opinion of the Commission on the Protection of Privacy, He sets:
1° the special guarantees of confidentiality and protection of personal data processed;
2° the method of designation of the data protection officer within the National Institute of Criminalism and Crimeinology, the tasks entrusted to him, and the guarantees relating to his independence;
3° how the National Institute of Criminalism and Crimeinology reports to the Commission on the Protection of Privacy on the processing of personal data.
The exercise of the duties of the attendant cannot result in any disadvantages to him. In particular, he may not be terminated or replaced as a manager because of the performance of the tasks entrusted to him.
Art. 8. The provisions of Article 5 of this Law shall also apply to persons who, for committing one of the offences referred to in Article 5, § 1^er, have been permanently sentenced to imprisonment or to a heavier penalty as well as to persons in respect of whom a measure of detention has been ordered on a final basis for committing one of the above-mentioned offences, before the date of entry into force of this Act, and the penalty of deprivation of liberty or the measure of internment has not yet been definitively enforced.
By derogation from Article 5, § 2, of this Law, a DNA profile of such persons shall be drawn up if, because of such conviction or detention, they are deprived of their liberty at the time of the coming into force of this Law as soon as they are released.
Art. 9. The King shall determine the date on which this Act comes into force.
Promulgate this Act, order it to be sealed by the State and published by the Belgian Monitor.
Given in Brussels on 22 March 1999.
ALBERT
By the King:
Minister of Justice,
T. VAN PARYS
Seal of the state seal:
Minister of Justice,
T. VAN PARYS
____
Note
(1) Session 1996-1997.
House of Representatives.
Parliamentary documents. - Bill by Mr. Lespagnard and Mr. J.-J. Viseur, 1047-96/97 - No. 1. - Amendments, 1047-96/97 - No. 2-5. - Report of the Justice Commission, 1047-96/97 - No. 6. - Text adopted by the Justice Commission, 1047-96/97 - No. 7. - Text adopted in plenary and transmitted to the Senate, 1047-96/97 - No. 8.
Annales parliamentarians. - Discussion and adoption. Meetings on 24 and 25 February 1999.
Senate.
Parliamentary documents. - Project transmitted by the House of Representatives, 1-1289-1998/1999 - No. 1. - Project not referred to by the Senate, 1-1289-1998/1999 - No. 2.