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Exchange of DNA Data Across the EU: Issues and Perspectives in Light of the Principle of Proportionality

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Criminal Proceedings, Languages and the European Union

Abstract

The present paper examines, with reference to the principle of proportionality, measures dealing with the exchange of DNA data between Member States in the framework of judicial cooperation in criminal matters in the EU. The aim is to assess if and to what extent the circulation of DNA data within the EU abides by the proportionality principle and what the content of this principle is. The paper questions the expediency of relying upon proportionality, despite the considerable differences between national legislations that risk undermining reciprocity, on which cooperation—especially if grounded on the principle of mutual recognition—is firmly based.

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Notes

  1. 1.

    Emiliou (1996), p. 23 ff. On the principle of proportionality as developed in the Anglo-Saxon context, see Craig (1999), p. 85 ff.; Wong (2000), p. 92 ff.; and Buckley (2004), p. 161 ff.

  2. 2.

    Among them, see Catalano (2011), p. 87.

  3. 3.

    Bachmaier Winter (2013), p. 90.

  4. 4.

    On the lex talionis and its connection to proportionality, see Fish (2008), p. 57 ff. On proportionality as a principle of sentencing, see Bagaric and McConvill (2005), p. 50 ff.

  5. 5.

    Schwarze (2003), p. 58.

  6. 6.

    On the problematic issues stemming from language diversity and EU law, see Castorina (2010), pp. 111–130, and Ruggieri (2011), pp. 3–12.

  7. 7.

    Schwarze (1992), p. 680 ff.

  8. 8.

    See Harbo (2010), pp. 172–180; Tridimas (1999), p. 89 ff.

  9. 9.

    The principle of proportionality under discussion is not that expressly provided for by Article 5 TEU—and already affirmed under the former TEC—concerning the exercise of competences by the European Union, according to which the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. Nor is principle of proportionality under discussion limited to criminal law, which Article 49 of the EU Charter of Fundamental Rights refers to where it affirms that the severity of penalties must not be disproportionate to the criminal offence. On these issues, see Böse (2011), p. 35 ff.

  10. 10.

    We do not share the view of Heard and Mansell (2011), p. 357, who affirm that the proportionality assessment is to be welcomed as it prevents “forum shopping”, understood as the unfair advantage that prosecutors may take from differences between countries’ procedural systems. See more in detail infra, sub-para. 3.

  11. 11.

    With specific reference to criminal procedure, the principle of proportionality is invoked by the European Court of Human Rights in order, inter alia, to draw a line between arbitrary and non-arbitrary detention, assess when the length of criminal proceedings must be considered excessive, assess whether denial of access to a court is a legitimate interference on individual rights. See McBride (1999), p. 27. For a review on the case law of the Court of Strasbourg concerning the principle of proportionality, see Eissen (1993), pp. 125–146. See also Arai-Takahashi (2002) and van Drooghenbroeck (2001), p. 9 ff.

  12. 12.

    This approach has been criticised by some scholars, as it sacrifices the development of objective standards and relieves the Court of this sensitive task. See McBride ( 1999), p. 29 ff.

  13. 13.

    Measures concerning police cooperation in criminal matters are voluntarily disregarded, even though most of the considerations put forward in this paper may apply to them too.

  14. 14.

    OJ L 63, 6 March 2002, p. 1.

  15. 15.

    OJ L 138, 4 June 2009, p. 14.

  16. 16.

    On the necessity of a common standard concerning proportionality at European level, see Symeonidou-Kastanidou (2011), p. 148.

  17. 17.

    OJ C 165, 24 June 2010, p. 22.

  18. 18.

    Brussels, 11 November 2009, COM(2009) 624 final.

  19. 19.

    OJ C 115, 4 May 2010, p. 1.

  20. 20.

    OJ L 350, 30 December 2008, p. 72.

  21. 21.

    The only exception is provided for measures carried out by joint investigation teams, to which the existing relevant provisions continue to apply.

  22. 22.

    The other eight delegations are Czech, French, Lithuanian, Luxembourger, Latvian, Polish, and Slovak.

  23. 23.

    The executing State shall be responsible for choosing the measures that, under its national law, will ensure the provision of the objects, documents, or data sought by a European evidence warrant for deciding whether it is necessary to use coercive measures to provide that assistance (Article 11, para. 2).

  24. 24.

    Under the traditional letters rogatory system, the requesting authority must describe the relationship between the proceedings and the requested measure so as to allow the requested authority to assess, prima facie, whether the requested piece of evidence is relevant and appropriate. The request must also be detailed in order to prevent letters rogatory directed to obtain an indefinite numbers of pieces of evidence: this would be contrary to the principle of proportionality as envisaged in certain national legislations. See Aprile and Spiezia (2009), p. 303.

  25. 25.

    Brussels, 21 December 2011, 18918, 2010/0817 (COD).

  26. 26.

    Similar considerations have been put forward with regard to the Framework Decision on the European Arrest Warrant, where nothing is provided on the assessment of proportionality in relation to the crime under proceedings. Under the German case law, this test has been considered applicable by virtue of Article 49, para. 3 of the EU Charter of Fundamental Rights. See Vogel and Spencer (2010), p. 474 ff.

  27. 27.

    Bachmaier Winter (2010), pp. 583–584.

  28. 28.

    This is the scenario resulting by the implementation of the European Arrest Warrant. The EU Commissioner Viviane Reding invited Member States not to make use of this instrument for petty crimes: “[…] the European arrest warrant [should] not [be] issued mechanically for crimes that are not very serious such as bicycle theft” (April 2011). See also Council Conclusions, Brussels, 28 May 2010, 8436/2/10, REV 2, p. 3.

  29. 29.

    Symeonidou-Kastanidou (2011), p. 159. See also Report from the Commission, Brussels, 11 April 2011, COH (2011) 175 final, p. 8.

  30. 30.

    OJ L 350, 30 December 2008, p. 60. Reform of data protection in the EU has been much debated and is still under discussion. New measures are to be adopted in the near future.

  31. 31.

    OJ L 281, 23 November 1995, p. 31.

  32. 32.

    The Framework Decision does not affect the data protection provisions governing the automated transfer between Member States of DNA profiles, dactyloscopic data, and national vehicle registration data pursuant to the Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime. Nor does the Framework Decision affect the relevant set of data protection provisions of those acts governing the functioning of Europol, Eurojust, the Schengen Information System (SIS), and the Customs Information System (CIS, or those introducing direct access for the authorities of Member States to certain data systems of other Member States (see Recital 39).

  33. 33.

    Also, further processing for another purpose shall be permitted in so far as, inter alia, processing is “necessary and proportionate” to that other purpose (Article 3, para. 2).

  34. 34.

    Davidson (2009), p. 36.

  35. 35.

    Similar suggestions have been put forward by Symeonidou-Kastanidou ( 2011 ), p. 143.

  36. 36.

    Indeed, the abolition of the check on double criminality for certain crimes (i.e. a presumption of legality) implies presumption of proportionality. As pointed out by Bachmeier Winter, when the offence that gives rise to a European Investigation Order is not punishable under the laws of both the executing and the issuing Member States, it is manifest that they do not share the same criteria with regard to the need and proportionality of investigative measures. Bachmaier Winter (2010), p. 585.

  37. 37.

    See Emiliou (1996), p. 46. Also the German Constitutional Court has drawn a direct connection between the principle of equality and the principle of proportionality.

  38. 38.

    With regard to the European Arrest Warrant, see Vogel and Spencer (2010), pp. 480–481, and Davidson (2009), pp. 34–36.

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  1. Dipartimento “Seminario giuridico”, Università di Catania, Via Gallo 24, 95124, Catania, Italy

    Rosanna Belfiore

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  1. Dept. of Law, Economics and Culture, University of Insubria, Como, Italy

    Francesca Ruggieri

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Belfiore, R. (2014). Exchange of DNA Data Across the EU: Issues and Perspectives in Light of the Principle of Proportionality. In: Ruggieri, F. (eds) Criminal Proceedings, Languages and the European Union. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-37152-3_14

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