Does DNA have to be relinquished when a request to do so is required? Minister of Justice Ferdinand Grapperhaus (CDA) wants to discuss this with the House of Representatives. After the DNA match in the Nicky Verstappen case, he said he wanted a debate on broader DNA collection "under certain circumstances" on Wednesday.
That discussion has been going on for some 30 years in a sense. Grapperhaus' predecessors Van der Steur, Hirsch-Ballin, Donner, Sorgdrager and Korthals Altes: they all advocate expanding DNA use in criminal investigations.
DNA research in the Netherlands since 1989 can be used in lawsuits. And again and again the will of justice comes up against a case with the legal protection of the individual against the state. As in 1991, when a suspect of a rape in Kerkrade refused to donate DNA. The Supreme Court, the highest judge in the Netherlands, agreed with the man. Mandatory DNA removal would clash with the constitutional protected inviolability of the body. This may only be infringed if there is a legal basis for this.
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Infringement of privacy
So that foundation came. Minister Frits Korthals Altes (VVD) arranged in 1994 that suspects in heavy murder cases are obliged to relinquish DNA if requested. The breach of their privacy had to be "as small as possible". Minister Piet-Hein Donner (CDA) came up with a new law in 2004: since then, convicts of serious crimes have been obliged to hand over their DNA to a DNA bank. His successor Ernst Hirsch-Ballin (CDA) broadened that law. And since 2012, DNA research has been permitted under a large group of people with a potential perpetrator. The boundaries of the desirable and legal have thus been continually shifted.
These are always incidents that fuel the discussion and lead to expansion. After the Kerkrade rapist the first rules came about DNA collection. These were broadened after the case of the Belgian child murderer Marc Dutroux. Later on, the large-scale DNA investigations came in large numbers of possible perpetrators, such as in the case of Marianne Vaatstra and, this year, Nicky Verstappen.
Often there was unwillingness, as under Korthals Altes and Hirsch Ballin. But it did happen. The reluctance comes partly due to legal restrictions. No one has to cooperate with his own prosecution, is a basic rule in law. But if people are forced to donate DNA, they have to cooperate, according to Rotterdam lawyers in 2016. Moreover, the constitutional protection of the inviolability of the body is beyond any discussion.
Shortages of money
There is also a practical limitation. Will the Netherlands Forensic Institute (NFI) be able to achieve large growth in DNA decreases? It has been struggling for years with too much work and shortages of money and researchers. This year the institute got 3 million euros extra to spend, on a budget of 66 million euros, and that money was already at the end of April. Grapperhaus then called on the police and the Public Prosecution Service (OM) to be cautious and to "sharpen" the priority when sending traces for NFI research.
Is the fundamental right that you do not have to cooperate in your own condemnation of DNA collection? read a Folkert Jensma column from 2012.
This spring also revealed that more than 20,000 DNA profiles of convicts are missing in the NFI database. In 2016 there were 'only' 10,000. The minister promised improvement. The current database contains some 200,000 DNA profiles, from convicts and from 'crime scenes', but not yet linked to a person.
The gap with the NFI is mainly due to the fact that many convicts do not show up for the agreed delivery of their DNA, concluded the Hoekstra committee in 2016. This investigated the case of Bart van U., the man who killed former minister Els Borst in 2014 and later also his sister. He was previously convicted of prohibited possession of weapons, but the Public Prosecutor forgot to take DNA from him. Had that happened, concluded Hoekstra, who investigated the failure of the government in the case, he had previously come into the picture as a murderer of Borst and the murder of his sister might have been prevented.
More convenient and efficient, according to Hoekstra: from now on, to all suspects of crime, DNA should be purchased. This saves unperfected appointments, creates a larger database of DNA profiles, and thus makes it easier to solve crimes.
The then Minister Ard van der Steur (VVD) embraced the plan, but further investigation showed that this could not be done according to European law. He also did not get the House of Representatives behind him. A majority would prefer better implementation of the existing scheme before another expansion would come that would further limit privacy. That better implementation of the DNA-taking has not been successful, according to the latest figures.
Grapperhaus already suggested this spring to also take DNA from suspects without a permanent residence. Later this year, or early next year, he elaborates on the future of DNA research, in response to an evaluation of the effectiveness of kinship research. In his words Wednesday the same restraint already sounded with which his predecessors broadened the law.