Le banche dati genetiche per fini giudiziari e i diritti della persona alla ricerca di una legislazione europea armonizzata
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Le banche dati genetiche per fini giudiziari e i diritti della persona alla ricerca di una legislazione europea armonizzataAuthor(s)
Date
2008Citation
Anuario da Facultade de Dereito da Universidade da Coruña, 2008, 12: 843-872. ISSN: 1138-039X
Abstract
[Abstract] Recent emergency legislation in several EU countries as well as continuous
developments in the scientific techniques and an improved use of genetic databases in
both crime and terrorism prevention and trials proceedings, put the issue of DNA data-
base legislation as one of the more delicate challenge of legislative harmonization at the
European level. Indeed, the balance between the right to privacy, which founds an incre-
asingly detailed and enforced protection at all levels, from national to sovra-national
and international arenas, and the right to security and to fair trials is hard to be achie-
ved and it depends a lot from the cultural, historical, philosophical background each
country is characterised by.
At present solutions widely differ in Europe: on the one side there are cases like
Italy, that has no official policy on the subject, while others, such as the United
Kingdom, have developed detailed policies. And among the countries having adopted
specific legislation on the creation, use and management of genetic databases, the
approaches are pretty different, as pretty different are the outcomes in terms of protec-
tion of privacy, security in a broad sense and the right to fair trial. Despite the presence
of several international declarations, as well as relevant resolutions of the EU
Parliament, the complex interrelation between the creation and use of DNA databases
within States and in the exchanges among them, remains highly problematic. In Europe,
most of EU member Status possesses national genetic databases, and national laws
ruling over their creation, maintenance and use. Still, only recently EU States have star-
ted to question this diversification and consider possible joint solutions.
The Treaty of Prüm, signed by 7 member States in 2005, opened the way for an
EU system of collection, access and exchange for extremely personal data such as DNA
and fingerprints. Given this background, the article seeks first to analyse the most
important national EU member states legislation concerning the use of genetic profiling
as instrument of crime prevention and protection of public security. We intend to under-
line on the one hand the effective norms which characterise the most important and
innovative national laws and regulations, and on the other hand the implications of
those laws and regulations undermining the protection and enforcement of fundamen-
tal rights, first of all the right to privacy and non-discrimination. Second, we will pro-
ceed discussing the European milestones on this matter and the process that led to the
adoption of the Treaty of Prüm, from both a political and a legal perspective, with their
innovations, but even with their dark sides. Finally, the article will try to assess the pro-
cess of harmonization, its challenges, the necessary mediations, and above all its rele-
vant ethical, social, economic as well as legal implications.
Keywords
Legislazione eiropea
Banche dati genetiche
Privacy
Diritto costituzionale
European legislation
Genetic databases
Privacy
Constitutional law
Banche dati genetiche
Privacy
Diritto costituzionale
European legislation
Genetic databases
Privacy
Constitutional law
ISSN
1138-039X