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Deliberation No. 2008-113 14 May 2008 Opinion On A Draft Decree In Council Of State Amending The Code Of Criminal Procedure Second Part: Decrees In Council Of State) And In The Matter Of The National File Of Genetic Prints

Original Language Title: Délibération n° 2008-113 du 14 mai 2008 portant avis sur un projet de décret en Conseil d'Etat modifiant le code de procédure pénale (deuxième partie : décrets en Conseil d'Etat) et relatif au fichier national des empreintes génétiques

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JORF n°0145 of 25 June 2009
text No. 98



Deliberation No. 2008-113 of 14 May 2008 on a draft decree in the Council of State amending the code of criminal procedure (part two: decrees in the Council of State) and on the national file of genetic imprints

NOR: CNIX0914513X ELI: Not available


The National Commission for Computer Science and Freedoms,
Seizure for advice by the Ministry of Interior, Overseas and Territorial Communities on 18 February 2008 of a draft decree in the Council of State amending the Code of Criminal Procedure (Part Two: Decrees in the Council of State) and relating to the national file of genetic imprints;
Considering the Council of Europe Convention No. 108 for the Protection of Persons with regard to the automated processing of personal data;
Considering Directive No. 95 / 46 / EC of the European Parliament and of the Council of 24 October 1995 on the protection of natural persons with regard to the processing of personal data and the free movement of such data;
In view of the Code of Criminal Procedure, Articles 706-54 and and R. 53-9 and following ;
In light of Act No. 78-17 of 6 January 1978 on computers, files and freedoms, as amended by Act No. 2004-801 of 6 August 2004 on the protection of natural persons with regard to personal data processing, and in particular its articles 11, 26, 30, 68 and 69 ;
See?Article 24 of Act No. 2003-239 of 18 March 2003 concerning internal security, as amended by Act No. 2004-801 of 6 August 2004;
Vu le Decree No. 2005-1309 of 20 October 2005, as amended by Decree No. 2007-451 of 25 March 2007, adopted for the purposes of Law 78-17 of 6 January 1978 on Computer Science, Files and Freedoms, as amended by Act No. 2004-801 of 6 August 2004 on the protection of natural persons in respect of personal data processing, including its articles 103 et seq.;
Vu la Act No. 2007-1160 of 1 August 2007 ratifying the Treaty of Prüm, concluded on 27 May 2005, between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria, on the deepening of cross-border cooperation, in particular with a view to combating terrorism, cross-border crime and illegal migration, published by the Decree No. 2008-33 of 10 January 2008 ;
Considering the deliberations of CNIL No. 99-052 of 28 October 1999, No. 02-008 of 7 March 2002 and No. 03-043 of 7 October 2003;
Considering the deliberation of CNIL No. 2006-220 of 28 September 2006 on the preliminary draft law for ratification of the Prüm Treaty;
After hearing Mr Jean-Marie Cotteret, Commissioner, in his report, Mr. Laurent Touvet, Director of Public Freedoms and Legal Affairs (Department of the Interior, Overseas and Territorial Communities), and Ms. Pascale Compagnie, Commissioner of the Government, in his comments,
Provides the following notice:



The commission was seized on February 18 by the Ministry of the Interior, the Overseas and the territorial authorities of a declaration file to amend the national file of genetic imprints, accompanied by a draft decree in the Council of State.
The draft decree in the Council of State amends the regulations relating to the FNAEG. These amendments result, in particular, from the entry into force of the Prüm Treaty, signed by Belgium, Spain, France, Luxembourg and the Netherlands on 7 May 2005, whose ratification was authorized by Act No. 2007-1160 of 1 August 2007, published in the Official Journal of 2 August 2007.
The Treaty aims to deepen cross-border police cooperation, particularly in the areas of terrorism, organized crime and illegal migration, and creates a "increased cooperation" in fact between Member States of the European Union wishing to intensify certain major areas of police cooperation.
In this context, it includes, among other things, unpublished provisions in the field of information exchanges in the field of genetic imprints, establishing an automated and reciprocal consultation mechanism between the databases of the signatory States.
The purpose of the draft decree is to take into account these stipulations, but also, as the draft report to the Prime Minister specifies, "to anticipate the future developments".
In this regard, it is planned to allow research in the FNAEG based on the nature of the case, which are currently prohibited under section R. 53-11 of the Code of Criminal Procedure.
In addition, the draft decree intends to amend the provisions of section R. 53-18 of the Code of Criminal Procedure, which limits access to information, power and enforcement of reconciliations carried out by the FNAEG, to the only duly authorized national police and gendarmerie personnel assigned to the file manager service. In this way, it aims to open rights in consultation for the conduct of reconciliation operations to personnel of international cooperation, police or foreign justice agencies, where an international commitment provides.
Finally, it amends section R. 53-19 of the Code of Criminal Procedure, which prohibits any form of interconnection or connection with other automated treatments of nominal information. It thus aims to allow such reconciliations to be carried out in the event of international engagement.


On international commitments and their implications


If the draft decree intends to amend the regulatory texts relating to the PNAEG in order to adapt them to the commitments made by France under the Prüm Treaty, the commission observes that its drafting is more general in nature, than the Ministry of Interior justifies by the necessity of "anticipating on future developments".
Indeed, the provisions of the draft decree are intended to allow the implementation of mechanisms for the exchange of information on genetic imprints other than those provided for under the Prüm Treaty.
It would thus have the effect of making possible the implementation of data exchanges on genetic imprints, "in application of international commitments", with "international cooperation bodies in the field of judicial police, as well as the police or justice services of States that have an adequate level of protection of privacy, freedoms and fundamental rights".
However, the Commission observes that, under the first paragraph of Article 68 of the Act of 6 January 1978, as amended by the Act of 6 August 2004, "the person responsible for processing cannot transfer personal data to a State that is not a member of the European Community unless that State ensures an adequate level of protection of the privacy, freedoms and fundamental rights of persons in respect of the treatment of which such data are the subject matter or may be made".
Therefore, it is necessary to ensure that the transfer of genetic data will be carried out in accordance with the provisions of the second paragraph of Article 68 above, which states that "the sufficiency of the level of protection provided by a State shall be assessed according to, inter alia, the provisions in force in that State, the security measures applied therein, the specific characteristics of the treatment, such as its purposes and duration, as well as the nature, origin and destination".
However, at this stage, the commission has no knowledge of the content of the international agreements referred to by the Ministry of Interior or the countries concerned by the said agreements.
In this regard, the Commission wishes to emphasize that it has only been seized of technical specifications concerning the exchange of genetic information resulting from the entry into force of the Prüm Treaty, "regularly introduced into the domestic legal order".
As a result, in view of the sensitivity of information that may be transmitted and the specific guarantees that must be taken to ensure the protection of genetic data, the Commission expresses the strongest reservations about the possibility that could thus be given to broaden the list of recipients of the NAFTA as a result of the entry into force of new international commitments.
It therefore considers that the decree cannot and should only permit the exchange of information provided for in the above-mentioned treaty and that its drafting must be amended in this sense.
In any event, the Commission requests to be associated with the preparation and definition of the French position in international negotiations that may have an impact on the list of recipients of the FNAEG, pursuant to the provisions of Article 11-4 (d) of the Act of 6 January 1978, as amended by the Act of 6 August 2004, and to be consulted on any draft law of ratification of treaties concluded after such negotiations, in accordance with the provisions of Article 11-4
In addition, the commission recalls that articles 69 of the law of 6 January 1978, as amended by the law of 6 August 2004, and 103 of the decree of 20 October 2005 as amended by the decree of 25 March 2007, adopted for the application of the said law, provide that transfers of personal data to countries that do not have "an adequate level of protection of privacy, freedoms and fundamental rights" must be subject to a decree in the Council of State taken.


Data retained


The draft decree before the commission on 18 February 2008 provided for amending, in its article 2, the provisions of the last paragraph I of article R. 53-11 of the Code of Criminal Procedure in order to make possible the research in the FNAEG based on the nature of the case, as long as they are provided for under international commitments.
In this regard, the Commission recalls that, pursuant to the 5th of the above-mentioned article, information on the nature of the case may only be used for statistical purposes and that it may not appear in the event of consultation or serve as a nominative research criterion.
According to its deliberation of 7 October 2003, the commission had also emphasized that such a provision was "in order to ensure that the FNAEG would be used only to facilitate the identification and search of offenders and not to know the judicial history of the persons included in it."
It also notes that this possibility of research by the nature of the case is not provided for by the Prüm Treaty and that at this stage it does not have any information relating to the international commitments evoked by the Ministry of Interior.
In these circumstances, the commission takes note of the commitment made by the Ministry of Interior to withdraw section 2 of the draft decree.
Finally, she notes that the draft decree does not seem to distinguish between the biological samples contained in the FNAEG.
Therefore, it may be possible to exchange data on biological samples taken from the ascendants and descendants of a missing person, in accordance with the provisions of I-5° of Article R. 53-10 of the Code of Criminal Procedure.
However, the Commission wishes to state that the authorizations that could be given by the persons concerned for the comparison of their genetic footprint are only in the traces and genetic footprints recorded in the file itself and considers that the NAFTA should be structured in such a way that data concerning the ascendants and descendants of persons can be treated and consulted separately.


On recipients


The draft decree intends to amend article R. 53-18 of the Code of Criminal Procedure by inserting a new paragraph after the first paragraph, which reads as follows: "Also may have access to personal data and other information recorded in the present treatment and to carry out reconciliations in accordance with international commitments the international cooperation bodies in the field of judicial police, as well as the police or justice services of States which have an adequate level of protection of the privacy of fundamental freedoms".
The Commission considers that persons individually designated and specially authorized by the competent authorities should be the only recipients within the aforementioned bodies and that the draft decree should be amended accordingly.
In this regard, the Commission observes that article 39 of the Prüm Treaty expressly states that: "automated consultation or comparison can only be carried out by officials of national points of contact which are particularly authorized to do so".
Finally, it is specified in the same article that: "on request, the list of officials authorized for automated consultation or comparison shall be made available to the supervisory authorities referred to in paragraph 5, as well as other Contracting Parties".


On information exchange modalities


With regard to the conditions for the implementation of the exchange of information, the Commission wishes to recall that, pursuant to its deliberation of 28 September 2006, advising on the bill authorizing the ratification of the Prüm Treaty, it had emphasized the need for the requesting national party to demand that it motivate its application before any data transmission.


On security


The Commission considers that the technical terms and conditions for ensuring consistency between a transmitted DNA profile and a DNA profile recorded in the contracting party's analysis file are consistent with the provisions of the Prüm Treaty and the enforcement agreements.
She notes that access to the system would be reserved for authorized agents, access to the badge-protected premises and access to the application by a password, however that the network used for the exchanges would be secure.
The Commission recalls that Article 39 of the Prüm Treaty imposes a logging process ensuring traceability of the transactions carried out and specifies a number of data that must be reported.
The logging data to be retained includes, for any biometric query, the reason for the request, the reference of the agent who made the consultation and the agent who was responsible for the request or transmission.
However, the Commission notes that the device provided does not comply with the above provisions to the extent that it does not identify the agent who is at the origin of the application.
Finally, it notes that, pursuant to Article 39-5 of the Prüm Treaty, the data protection authorities are responsible for the "legal control of the transmission or receipt of personal data". In this regard, "any person may, under national law, request these authorities to verify the legitimacy of the data processing in respect of it. Regardless of such requests, these authorities as well as the competent authorities for logging must also conduct random checks to verify the legitimacy of the transmissions, using the files that were at the basis of the consultations".
Accordingly, the Commission requests the Ministry of the Interior to make all the technical arrangements to enable it to exercise this control.


The president,

A. Türk


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