Le banche dati genetiche per fini giudiziari e i diritti della persona alla ricerca di una legislazione europea armonizzata

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.