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RS 363.1 Order of 3 December 2004 on the use of DNA profiles in criminal proceedings and on the identification of unknown or missing persons (DNA profiles order)

Original Language Title: RS 363.1 Ordonnance du 3 décembre 2004 sur l’utilisation de profils d’ADN dans les procédures pénales et sur l’identification de personnes inconnues ou disparues (Ordonnance sur les profils d’ADN)

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363.1

Order on the use of DNA profiles in criminal proceedings and on the identification of unknown or missing persons

(DNA profiles order)

On 3 December 2004 (State 1 Er January 2015)

The Swiss Federal Council,

See art. 22 of the Federal Act of 20 June 2003 on the use of DNA profiles in criminal proceedings and on the identification of unknown or missing persons (DNA profiles law) 1 ,

Stops:

Section 1 DNA samples and analysis

Art. 1 Procedures, technical means and processes

The Federal Department of Justice and Police (DFJP) determines: 1

A.
According to which procedures and with what technical means the samples should be taken;
B.
Which quality criteria should be respected when taking samples.

1 New content according to the c. I of O du 22 oct. 2014, in force since 1 Er Jan 2015 ( RO 2014 3467 ).

Art. 2 1 Analysis and Recognition Laboratories

1 Forenics DNA testing can only be performed by recognized forenic genetic testing laboratories (laboratories).

2 The DFJP 2 May, upon request, recognize laboratories:

A.
If they are accredited by the Swiss Accreditation Service (SAS) in the field of forensic genetics, in accordance with the order of 17 June 1996 on accreditation and designation 3 ;
B.
If they meet the delivery and quality requirements at any time;
C.
Have successfully participated in at least four external quality controls over the past twelve months; the DFJP defines the conditions for the recognition of these external quality controls;
D.
If they have, within the scientific directorate of the laboratory, a specialist who has obtained the title of "SSML forenics geneticist" issued by the Swiss Society of Forensic Medicine or justifying an equivalent qualification;
E.
If the members of the laboratory management have a good reputation and offer the guarantee of an irreproachable activity; and
F.
If the members of the laboratory management can exercise the effective management of the laboratory in its seat and take responsibility for it.

3 It determines the supply and quality requirements referred to in para. 2, let. B.


1 New content according to the c. I of the O of 22 June 2005, in force since 1 Er August 2005 ( RO 2005 3337 ).
2 New expression according to c. I of O du 22 oct. 2014, in force since 1 Er Jan 2015 ( RO 2014 3467 ). This mod has been taken into account. Throughout the text.
3 RS 946.512

Art. 2 A 1 Documents to attach to the discovery request

The following documents must be attached to the discovery request:

A.
Certification under s. 2, para. 2, let. A;
B.
The certificate of successful participation in at least four external quality controls under s. 2, para. 2, let. C;
C.
Proof of the qualification under s. 2, para. 2, let. D;
D.
The extract of the criminal record and the register of liability and bankruptcy proceedings of the members of the management;
E.
The complete list of criminal investigations as well as criminal and civil proceedings of the last ten years of the members of the Directorate;
F.
The extract from the trade register;
G.
The previous year's activity report or management report;
H.
Confirmation that all persons working in the field of forenics have taken note of their duty of confidentiality;
I.
Indications concerning laboratory staff, including professional competence and employee benefit certificates;
J.
Indications concerning the technical resources available on an ongoing basis for the analysis of DNA forenics samples;
K.
Security of data security.

1 Introduced by ch. I of the O of 22 June 2005, in force since 1 Er August 2005 ( RO 2005 3337 ).

Art. 3 1 Control

1 The Federal Police Office (fedpol) checks whether the laboratories comply with the requirements for DNA forenics analyses and data protection and data security provisions. 2 To this end, it may carry out checks and inspections announced in advance or unannounced on the spot.

2 He or she may ask the laboratory to provide the information or documents to the laboratory free of charge and to request any other support from the laboratory to carry out its monitoring task. In particular, it may require any charges for which accreditation and subsequent controls are accompanied, as well as the grounds for the withdrawal of accreditation.

3 It can, in order to carry out its tasks, go to land and enter businesses or premises.

4 It verifies, at least every three years, whether the delivery and quality requirements are met, and delivers a report to the DFJP.


1 New content according to the c. I of the O of 22 June 2005, in force since 1 Er August 2005 ( RO 2005 3337 ).
2 New content according to the c. I 14 of the O of 15 Oct. 2008 on adaptations resulting from the Federal Law on the Police Information Systems of the Confederation, in force since 5 Dec. 2008 ( RO 2008 4943 ).

Art. 3 A 1 Collaboration with the Swiss Accreditation Service

Fedpol can request the collaboration of the Swiss Accreditation Service (SAS) to perform its tasks.


1 Introduced by Art. 22 of the O of 14 February 2007 on the establishment of DNA profiles in civil and administrative matters ( RO 2007 669 ). New content according to the c. I 14 of the O of 15 Oct. 2008 on adaptations resulting from the Federal Law on the Police Information Systems of the Confederation, in force since 5 Dec. 2008 (RO 2008 4943).

Art. 4 1 Removing the discovery

The DFJP can withdraw recognition at any time if the laboratory no longer meets the requirements.


1 New content according to the c. I of the O of 22 June 2005, in force since 1 Er August 2005 ( RO 2005 3337 ).

Art. 4 A 1 Emoluments

1 Perception of emoluments for recognition and control (art. 2 to 4) is governed by the order of 8 September 2004 on emoluments 2 .

2 The levying of emoluments for the activity of the SAS exercised in the context of this order is governed by the order of 10 March 2006 on the emoluments of the State Secretariat for the Economy in the field of accreditation 3 .


1 Introduced by Art. 22 of the O of 14 February 2007 on the establishment of DNA profiles in civil and administrative matters, in force since 1 Er April 2007 ( RO 2007 669 ).
2 RS 172.041.1
3 RS 946.513.7

Art. 5 Obligation to communicate

The laboratories shall notify the DFJP within 30 days of any modification of the data they have transmitted in order to fulfil the conditions necessary for their recognition.

Art. 6 Preservation and destruction of samples

1 In addition to the sample under s. 9, para. 2, the DNA profiles law, the laboratories destroy the DNA extracted from the sample and the products derived from the established profile.

2 They shall immediately refer to the requesting authority the support for indicial traces which they did not need to establish the DNA profile. They retain as evidence the DNA extracted from the trace that was not used in the DNA analysis and destroy it fifteen years after the specimen was received in the laboratory, except in the case of imprescriptible offences. The 15-year retention period may be extended by the police or by the public prosecutor no later than the expiry of the limitation period for criminal proceedings. 1


1 New content according to the c. I of O du 22 oct. 2014, in force since 1 Er Jan 2015 ( RO 2014 3467 ).

Art. 6 A 1 Using trace profiles that were not entered in the information system

1 The laboratory may, on a specific mandate, make a comparison of the trace profiles contained in the laboratory analysis data that have not been entered into the information system based on the DNA profiles (information system), With other DNA profiles of people or traces (local comparison).

2 The local comparison can be performed to:

A.
Identify a person from a trace profile that cannot be compared in the information system;
B.
Identify or exclude persons in the context of a large-scale investigation;
C.
To isolate the traces of persons authorized to visit the scene of an offence;
D.
Eliminate identical profiles.

3 Before performing the local comparison, the laboratory checks whether the DNA profile of the person to be compared to the existing trace profile at the local level has an active status in the information system.


1 Introduced by ch. I of O du 22 oct. 2014, in force since 1 Er Jan 2015 ( RO 2014 3467 ).

Art. 7 1

1 Repealed by c. I of O du 22 oct. 2014, with effect from 1 Er Jan 2015 ( RO 2014 3467 ).

Section 2 DNA profile-based information system

Art. 8 1 Principle

1 Fedpol is the master of the information system as defined in the Federal Law of 19 June 1992 on Data Protection 2 And is responsible for its overall operation.

2 It lays down a regulation on the processing of data.


1 New content according to the c. I of O du 22 oct. 2014, in force since 1 Er Jan 2015 ( RO 2014 3467 ).
2 RS 235.1

Art. Data processed in the information system

1 The following categories of data are processed in the information system:

A.
Process control number;
B.
File number;
C.
Profile;
D.
Date of seizure;
E.
Dates for monitoring the analysis process;
F.
Laboratory designation;
G.
Profile category;
H.
Sample type
I.
Indications concerning treatment.

2 Only profiles that meet the criteria defined by fedpol are entered in the information system. 1


1 Introduced by ch. I of O du 22 oct. 2014, in force since 1 Er Jan 2015 ( RO 2014 3467 ).

Art. A 1 Coordination Service

1 The DFJP designates the Coordination Service as one of the recognized laboratories.

2 The Coordination Service performs the following functions:

A.
Verifying that the profiles established by the laboratories meet the requirements of fedpol;
B.
Operating the operational information system;
C.
Collaborating with fedpol in international applications;
D.
It represents the interests of recognized laboratories with Confederation.

3 It also compares the DNA profile of a trace that does not meet the criteria for entering the information system on a specific mandate.

4 It must have a quality management system; fedpol oversees its implementation.

5 It collects the following emoluments:

A.
For the treatment of a smear of the jugal mucosa: 20 francs;
B.
For processing a trace: 40 francs;
C.
For the processing of a profile from abroad: 20 francs.

1 Introduced by ch. I of O du 22 oct. 2014, in force since 1 Er Jan 2015 ( RO 2014 3467 ).

Art. 10 Procedures

1 The requesting authority shall send to AFIS Services ADN the process control number, together with known identity data or data relating to the place of the offence. It transmits the sample with the process control number for analysis to a recognized laboratory.

2 AFIS ADN Services processes the process control number, data relating to a person or biological trace and those relating to the premises of the infringement in the IPAS computerised system. 1

3 The laboratory prepares the profile and transmits it with the process control number to the Coordination Service only. 2

4 The Coordination Service enters the profile in the information system, checks whether a match is established with the profiles contained in the information system (comparison of profiles) and transmits the result to AFIS ADN Services. 3

5 AFIS ADN Services shall link, using the process control number, the matches of DNA profiles or biological traces communicated by the Coordination Service with data relating to biological persons or traces, and Data relating to the location of the offence already contained in IPAS. They shall put the result of the comparison at the disposal of the requesting authority and the other authorities concerned.

6 The case file must contain the following information throughout the procedure: profile process control number, name, first name and date of birth of the data subject.


1 New content according to the c. I 14 of the O of 15 Oct. 2008 on the adaptations resulting from the PMQ on the police information systems of the Confederation, in force since 5 Dec. 2008 ( RO 2008 4943 ).
2 New content according to the c. I of O du 22 oct. 2014, in force since 1 Er Jan 2015 ( RO 2014 3467 ).
3 New content according to the c. I of O du 22 oct. 2014, in force since 1 Er Jan 2015 ( RO 2014 3467 ).

Art. 11 Profiles of persons authorised to visit the premises of an offence in the course of criminal proceedings

1 The cantonal and federal authorities may make available to the Coordination Service, for quality control, the DNA profiles of persons performing tasks in the fields of identification, collection of Evidence and profiling.

2 They shall transmit to the Coordination Service the profile of the persons, together with an identification number. Personal data is not transmitted.

3 The Coordination Service registers the profiles in an independent index of the information system. In order to prevent the profiles or traces from being contaminated, it can compare the profiles in the information system with those in the index.

4 The authorities order that the profile of a person be deleted from the index as soon as its activity no longer requires registration.

Section 3 Clearing of DNA profiles ex officio

Art. 12 Communication of Erase

1 The cantons notify AFIS ADN Services when the legal requirements are fulfilled for the erasure of profiles within the meaning of Art. 16 to 19 of the DNA Profiling Act. They designate a central service responsible for carrying out these communications.

2 The communication must be made electronically within 30 days of the occurrence of the event justifying the deletion.

3 The following federal authorities notify AFIS ADN Services when the legal requirements are fulfilled for the erasure of profiles within the meaning of Art. 16 to 19 of the DNA Profiling Act:

A.
The Federal Judicial Police and the Public Prosecutor's Office;
B.
The Office of the Chief Auditor for the military justice authorities;
C.
The authorities of the Confederation who conduct administrative criminal law procedures;
D.
The Federal Criminal Court and the Federal Court.
Art. 13 Processing Clear Communications

When the legal requirements for an erasure are fulfilled, AFIS ADN Services shall erase the data in the IPAS system on the basis of the communication, in accordance with Art. 16, para. 2, of the IPAS order of 21 November 2001 1 At the same time, they erase the profile of the information system.


1 [ RO 2002 111 , 2004 4813 Annex, c. 10, 2006 945. RO 2008 5043 art. 14]. See currently O du 15 oct. 2008 (RS 361.2 ).

Art. 14 1 Delays

The period of cancellation provided for in Art. 16, para. 3, of the DNA profiles law at the moment of the material processing.


1 New content according to the c. I 14 of the O of 15 Oct. 2008 on adaptations resulting from the Federal Law on the Police Information Systems of the Confederation, in force since 5 Dec. 2008 ( RO 2008 4943 ).

Art. 15 Clear subject to authorization

For erasure under s. Of Art. 17 of the DNA profiles law, the requesting authority only communicates the request for deletion to AFIS DNA Services only when it has obtained the required authorisation from the judge.

Art. 15 A 1 Erasing a profile in case of disjunction or junction of criminal proceedings

If a criminal procedure is attached or attached, under s. 30 of the Code of Criminal Procedure 2 , to that of another canton or other authority, the canton or the authority having ordered the establishment of a DNA profile under this procedure retains responsibility for the deletion of this profile.


1 Introduced by ch. I of O du 22 oct. 2014, in force since 1 Er Jan 2015 ( RO 2014 3467 ).
2 RS 312.0

Art. 16 Clearing of foreign profiles in the framework of international cooperation

1 Where, within the framework of international cooperation, a request for comparison is made to Switzerland for a foreign profile, fedpol shall act as the authority which orders the measures within the meaning of Art. 7 of the DNA Profile Act. 1

2 If the foreign profile has an erasure date, it must be specified in the IPAS system.


1 New content according to the c. I 14 of the O of 15 Oct. 2008 on adaptations resulting from the Federal Law on the Police Information Systems of the Confederation, in force since 5 Dec. 2008 ( RO 2008 4943 ).

Section 4 Data protection and security

Art. 17 Data Protection and Information Privacy 1

1 Data processing under this Ordinance shall be governed by the Federal Law of 19 June 1992 on Data Protection 2 .

2 All persons who process data in the information system must ensure that they are correct.

3 Laboratory collaborators are required to maintain secrecy under s. 35 of the Federal Law of 19 June 1992 on Data Protection. If they hold an official function, they are also subject to the secrecy of duty within the meaning of s. 320 of the Penal Code 3 . 4


1 New content according to the c. I of the O of 22 June 2005, in force since 1 Er August 2005 ( RO 2005 3337 ).
2 RS 235.1
3 RS 311.0
4 New content according to the c. I of the O of 22 June 2005, in force since 1 Er August 2005 ( RO 2005 3337 ).

Art. 18 Planning and statistics

1 Only anonymized data can be processed for business planning and internal control purposes.

2 Data used and published for statistical purposes must be made anonymous.

3 Fedpol makes available to the Federal Statistics Office, after making them anonymous, the information on the information system that this Office needs to carry out its tasks.

Art. 19 Data security

1 Data security is governed by s. 20 to 23 of the Order of 14 June 1993 on the Federal Data Protection Act 1 , by the September 26, 2003 ordinance on information technology in the federal government 2 And by the recommendations of the Confederation's Informatics Strategy Unit.

2 The cantons shall ensure the security of data in their field in accordance with the rules referred to in para. 1. The stricter cantonal data security provisions are reserved.

3 The AFIS ADN Services and the Coordination Service shall take, in their respective fields of activity, the organisational and technical measures necessary to ensure the security of personal data.


Section 5 Final provisions

Art. Executing

The DFJP and the cantons shall execute this order in their respective fields of activity.

Art. Amendment of the law in force

... 1


1 The mod. Can be viewed at RO 2004 5285 .

Art. Transitional provisions

1 The cantons shall indicate to fedpol on 31 December 2009 at the latest, the date of cancellation of each DNA profile in the information system established in accordance with the ADNS Ordinance of 31 May 2000 1 .

2 In motivated cases, the DFJP can grant an extension of time.


1 [ RO 2000 1715 , 2002 111 art. 19 hp. 1]

Art. Entry into force

This order shall enter into force on 1 Er January 2005.



RO 2004 5279


1 RS 363


State 1 Er January 2015