Earlier collection of cellular material from suspects for DNA analysis, subject to conditions

With robust safeguards in place, cellular material could be collected from suspects earlier in the criminal process. If a suspect is convicted, a DNA profile can be created and stored in the DNA database for criminal cases, as Ferdinand Grapperhaus, Minister of Justice and Security, explained in a letter to the Lower House of Parliament. Prerequisites for the precautionary collection of cellular material include careful organisation of the work process and a supporting ICT infrastructure. The importance of DNA testing in criminal cases is undeniable. It helps to identify the correct suspects and ensure they are dealt with under criminal law.

At present, under the DNA Testing (Convicted Persons) Act (Wet DNA-V), cellular material is taken as soon as someone is convicted and sentenced as defined by the Act for an offence for which pre-trial detention is an option. In practice, cellular material is collected and DNA profiles entered into the database for only 87% of eligible offenders. Furthermore, because the cellular material is not collected until after the conviction, some of it is untraceable.

Hoekstra Commission

Over the past few years, there have been regular discussions with the Lower House about the operation of the DNA-V Act. These discussions intensified after the release of reports by the Hoekstra Commission, which was set up after the tragic murder of two people by Bart van U., namely former minister Els Borst and his sister Loïs. The Lower House has expressed a desire to collect cellular material at an earlier stage of the criminal process. After assessing the legal tenability of the proposal, Mr Grapperhaus indicated that he would be prepared to introduce a law providing for precautionary collection of cellular material. Before doing so, he commissioned a detailed study into the conditions that would need to be met to ensure the system worked as it should. That study has now been completed.

Legislative amendment

Based on the results of the study, the Minister is now announcing a legislative amendment that will make it possible to collect cellular material from every arrested suspect who is released after questioning or after a period in police custody, but who is still suspected of an offence for which pre-trial detention is an option, or when an application for detention is made. This will ensure that a DNA profile is stored in the database for 99% of convicted offenders, as defined by the DNA-V Act.

Although cellular material will be collected at an earlier stage, it cannot be used for DNA analysis immediately, which means there is no expansion of the existing obligations in the DNA-V Act. The cellular material will be stored after collection, and a DNA profile may be created only after conviction, if the public prosecutor issues an order under the Act. If the person is no longer regarded as a suspect, the cellular material will immediately be destroyed.

Conditions for implementation

Many conditions must be met in order for cellular material to be collected at an earlier stage. For example, adequate ICT facilities are an essential prerequisite for being able to collect and process more cellular material and destroy it if necessary. In addition, it is important for one central, independent government organisation to be given responsibility for the storage and management of the cellular material collected; that organisation must furthermore have no interest in the use of the cellular material in the criminal process.

The details of how the precautionary collection process will unfold are still being worked out, but the Minister is already promoting the change in the law. Minister Grapperhaus has stressed that diligence will be of the utmost importance.

‘I consider flawless execution of the procedure to be an essential prerequisite for the precautionary collection of cellular material. The integrity of a new statutory system hinges on the ability to guarantee the security of the storage, management, transport and destruction of cellular material that has been collected on a precautionary basis.’