Keywords

Introduction

Germany’s DNA database was established in 1998 and has grown into one of the mid-sized databases in Europe. According to the European Network of Forensic Science Institutes (ENFSI), as of June 2016, the German DNA database held 857,666 profiles of individuals (ENFSI, 2017).Footnote 1 This amount of DNA profiles relates to 1.07 per cent of the resident population (of 80,000,000). More recent data shows that as of July 2017, there were 869,435 person profiles held in the database (Deutscher Bundestag, 2017) which does not change significantly the portion of the population because the overall population grew likewise. Among the databases of countries in Europe, the German database is an average size, comparable to that of the Netherlands (Reed & Syndercombe-Court, 2016).

Germany, under the leadership of its Minister of the Interior, was among the countries that drove the creation of the Prüm system and was among the first signatories of the Prüm Convention in 2005, which the German Parliament ratified in 2006. The 2007 German Presidency of the EU, together with the European Commission, also pushed for the integration of the Convention of Prüm into an EU legal framework (Töpfer, 2016, p. 812).

The German vision of Prüm was that it would harmonize international police collaboration through the use of biometric data. Prüm would help to interconnect different available data (Töpfer, 2016, p. 809). Germany’s expansive approach is documented in its early involvement and comprehensive establishment of data exchange with most of the countries in the system. According to the latest data available, Germany is among the Member States with the most connections. It is connected and operational with 21 Member States (Council of the European Union, 2020). As we will detail later in the chapter, the German case provides evidence of the string-pulling practices employed by the governments of some Member States to influence the architecture and performance of transnational police collaboration in Europe. Germany’s diffusive approach aims to enforce the implementation of Prüm elsewhere through political blaming and shaming of Prüm non-compliers and public calls for the EU to take disciplinary measures against non-compliers. Therefore, the German case serves to illustrate an expansive and diffusive mode of debordering.

Germany’s situation regarding genetics stands out because of its historical and cultural particularities. Public perceptions regarding genetics in Germany are still influenced by memories of Germany’s Nazi past and of how science was used in racializing genetics and the eugenics movement (Kattmann, 2017). Germany’s past has contributed to a strong sense of privacy regarding genetics and a general suspicion of state and law enforcement agencies having access to the sensitive genetic information of their citizens (Sperling, 2008). Such public scepticism was also dominant when the DNA database was established in 1998 (Lee, 2016, p. 216; BT-DRS 13/667).

There also seems to be particular racial sensitivities in Germany’s criminal justice system and in wider public perceptions that can be illustrated by the ‘Phantom of Heilbronn’ case (Samuel & Prainsack, 2019, p. 32). In Germany’s recent history, the case has demonstrated the problematic entanglement of the media, the institutional prejudice of investigators and forensic DNA-based investigation methods in the construction of high-profile crime cases (Lipphardt, 2018; Samuel & Prainsack, 2019). In the ‘Phantom of Heilbronn’ case, following a series of murders in Heilbronn in 2007, the DNA from the same person was linked to 40 crimes perpetrated between 1993 and 2009 in various countries: France, Germany and Austria. The DNA analysis suggested that the suspect was an East-European female, and criminal investigators took this as implicating the Sinti and Roma community (Samuel & Prainsack, 2019, p. 32). However, the presence of the DNA from the same person in dozens of crime scenes in different countries was eventually found to be the result of contamination caused by a Polish factory worker packaging cotton swabs that were then used in different forensic labs across Europe for the investigation of crime scene stains. In 2012, the Minister of the Interior for the German State of Baden-Württemberg apologized to the Sinti and Roma community for the police’s bungled interpretation of DNA evidence after the Heilbronn murders (Lipphardt et al., 2016). The case revealed the ‘potential for over-investment in or misunderstanding of test results in the context of existing stigmatisation of minority groups’ (Skinner, 2018, p. 4).

A different aspect of discrimination of minority groups derives from the use of forensic DNA analysis in the context of migration and border control for the purpose of family reunification of immigrants (Heinemann, Helén, Lemke, Naue, & Weiss, 2015). As immigrants have no say on what happens to their DNA analysis results, their data is not required to be deleted and instead may be used for criminal prosecution purposes in case of reasonable suspicion that a criminal offence might be committed (Heinemann, Naue, & Tapaninen, 2013, p. 198). Heinemann and Lemke (2014, p. 501) assumed that data deriving from family reunification of immigrants might be stored and potentially exchanged via the Prüm regime for crime prevention purposes.

The particular notion of nationhood in Germany is entangled with cultural meanings of forensic DNA technologies that reveal historical traumas and their potential to enforce socially constructed differences between population groups. While we find overall a sense of societal ambiguity towards genetic technologies because of Germany’s Nazi past, we also have exemplary cases illustrating modes of racism and discrimination towards minority groups being enacted through forensic genetic technologies.

National DNA Database Development

Germany’s DNA database started in 1998 and grew to become a medium-sized database in comparison with the other databases in Europe (Reed & Syndercombe-Court, 2016). Forensic DNA analysis was used for the first time in a German court case a decade before the creation of the database, in 1988. In the case, the accused gave consent for their blood to be collected, but was not informed of the DNA analysis. Since the result seemed to indicate his guilt, he admitted the offence (Schultz & Wagenmann, 2017, p. 30). At that time, the use of identification by DNA profile was not regulated by law.

The legislative framework in Germany is characterized by a traditional civil law system built on an inquisitorial system. The main sources of law are the German constitution and codified law passed by the federal government. A first step towards the regulation of the DNA retention regime was that, in 1990, the Federal Supreme Court declared DNA profile analysis to be admissible as evidence in court, as it might help find criminals and exonerate the innocent. But the use of DNA analysis was only considered legitimate in cases of serious crimes. The first legal regulation of forensic DNA analysis followed in 1997, after the German Parliament and the courts had begun adjusting policies on the collection of DNA samples in response to peoples’ fears about the dangers of genetic technology in the mid-1990s. The emerging policies regulated the limits of the use of DNA technologies (Lee, 2016, p. 216), as outlined in the reasoning for the 1997 legislation, which was first proposed in 1995:

[Legal regulations] also appear necessary because the determination of clear boundaries can counter the fears that are generally associated with genetic engineering and which are found in large parts of the population, that the use of such investigations in criminal proceedings leads to disproportionate, the essence of personality affecting interventions. (BT-DRS 13/667)

With the Criminal Investigation Amending Act DNA Analysis (Strafverfahrensänderungsgesetz DNA-Analyse), the federal government defined the conditions for the use of forensic DNA analysis.Footnote 2 In 1998, the Interior Ministry installed a central DNA database at the Federal Criminal Police Office (Bundeskriminalamt or BKA) following the increasing media attention on cases of sexual abuse and murder of children. Among the cases to receive substantial media attention was that of an 11-year-old girl murdered in Strücklingen in 1996. The killer was arrested following the largest DNA dragnet operation in the world to that date, which involved collecting DNA samples from 16,400 men between the ages of 18 and 30 (Krimsky & Simoncelli, 2011, pp. 205–207). The Federal Criminal Police Office became the custodian of the DNA database. Public prosecution services can also be provided with data from the German DNA database for criminal justice purposes (Van Camp & Dierickx, 2007).

Over time, the legislation further outlined the conditions for the collection and storage of DNA profiles. The first specifications determined that DNA profiles could be created and stored for severe crimes (Schultz & Wagenmann, 2017, p. 32). A second specification followed in 1999, outlining the catalogue of crimes that count as ‘severe crimes’ and justify the creation of a DNA profile of convicted persons. In addition to capital crimes, the repeated commission of other criminal offenses including burglary, defamation and full intoxication can lead to the collection of DNA profilesFootnote 3 (ibid.). In 2005, a third specification expanded the type of offences qualifying for the collection and storage of DNA profiles of suspects to include minor offences, if they are regarded as repeat acts. Another substantial change was that a judge’s order was no longer absolutely necessary and people could voluntarily agree to provide DNA samples for a DNA profile analysis. This amendment resulted in a massive increase in the number of DNA profiles collected (Schultz & Wagenmann, 2017, pp. 32–33). The latest legal changes in Germany have legalized ‘familial searching’—the search for relatives through near matches between DNA profiles—although it is a forensic genetic technology that has been contested for a long time due to privacy concerns (see below).

With regard to its deletion practices, Sallavaci confirms that Germany follows the ruling in S and Marper v United Kingdom [2008] ECHR 1581 (see Chap. 8) in relation to DNA profiles and fingerprint evidence and deletes an individual’s data ‘if they are found not guilty, charges are dropped or where after an arrest and investigation no further evidence is found’ (Sallavaci, 2017, p. 9). According to the BKA law (§77 Abs. 1 S. 2 BKAG), the retention regime regulates that profiles of adults and of crime stains will be reviewed after ten years and profiles of minors after five years, and then either corrected or deleted.

Regulation concerning forensic DNA phenotyping (FDP) has been on the policy agenda since December 2016. In 2018 the federal government’s coalition agreement and the Bavarian State Police Law had advanced with the plans of inclusion of FDP techniques. In 2018, Bavaria explicitly permitted the prediction of age, hair, eye and skin colour under the specific condition of what was called ‘pre-emptive immediate threats’ or ‘imminent danger’ (Momsen & Weichert, 2018). Momsen and Weichert (2018, p. 4) explain:

[…] the extremely vague concept of ‘imminent danger’ suggests that the line between averting imminent danger and prosecuting potential criminals should be blurred. The ‘endangered’ is not a category of applicable law. People or groups are declared potential offenders, who are sanctioned by police law in anticipation of a later punishment.

Contested by civil society groups, forensic geneticists and data protectionists, the change allows FDP to be carried out based on the police’s presumption about an existing ‘imminent danger’. Momsen and Weichert (2018, p. 4) conclude that ‘[t]he proposals are therefore unconstitutional and contrary to European law. They do not take into account the highly personal relevance of genetic data and the associated risks of discrimination’.

After a bundle of FDP techniques were incorporated already into the first state’s legal system—in a federal state system of 16 states—the national parliament passed a bill including the prediction of externally visible characteristics and age, but excluding the prediction of biogeographic ancestry by the end of 2019 (Gesetz zur Modernisierung des Strafverfahrens, 2019). The federal law does not refer to the concept of ‘imminent danger’ and instead regularizes FDP for the whole country.

With regard to the technical database infrastructure, the federal state structure of Germany affects the organization of, and access to, the database. Officials from the BKA and the state criminal police offices of Germany’s 16 states have direct access to the database. The IT system the database runs on was developed in Germany and has been rebuilt several times. The database works with an Oracle system. Germany was also involved in developing the Prüm software, which was developed jointly by DNA and IT experts from the Bundeskriminalamt (BKA) and staff from the Ministry of the Interior of Austria and the Netherlands Forensic Institute in the Netherlands (Table 4.1).

Table 4.1 Development of the German forensic DNA database
Full size table

Regarding the organizational imperatives and principles, such as reliability, transparency and public accountability, which govern the database and translate into work routines, a particularity of the German system is the parallel structures of oversight regarding data protection at the federal and state levels. There are data protection commissioners in each of the 16 states who control the creation of entries in the national DNA database and maintain the deletion periods for the data they ‘own’. The data protection commissioner at the federal level, together with the internal data protection commissioner at the Bundeskriminalamt, is in charge of overseeing the few entries the Bundeskriminalamt contributes to the database, which are few in comparison with the entries made at the state level (Deutscher Bundestag, 2017).

Differently than in Portugal, the Netherlands and the UK, in Germany, information about the categories of DNA data included in the DNA database and about data exchange with other countries is only made public on request, as there are no annual reports that include such information. Requests must be made through parliament and are often initiated by opposition parties. The government then provides an official response about the situation of the database, the data development in the database, and the data exchanged transnationally. In consequence, this lack of public accountability necessitates an attentive parliament, ready to call for transparency and be a critical ‘watchdog’ (Deutscher Bundestag, 2017).

Alongside the data protection commissioners and parliament, other stakeholders complement the panorama of public voices accompanying (often critically) the national DNA database, DNA technology development and data exchange. Several social scientists as well as civil societal actors within Germany have cast a critical eye over the evolution of the DNA database. General criticisms of expansionary DNA profiling regimes have been voiced sporadically, for example, by the activist German ‘Campaign against DNA collection frenzy’ (Gen-ethisches Netzwerk e.V., 2011; Williams & Wienroth, 2014, p. 8). The presence of at least partially critical civil society actors, including independent data protection experts and legal scholars, represents the demand for further accountability regarding the DNA database.

Regarding the development of DNA technology, as in other countries, recent technological innovations in forensic genetics have entered Germany’s regulatory context. Familial DNA database searching is one of them. It is based on near matches between a crime stain and a databased person, who could be a near relative of the true perpetrator (Maguire, McCallum, Storey, & Whitaker, 2014). Before regulations on their use existed, it became publicly known during a dragnet operation that the German police was already using familial searching strategies. In the little town of Dörpen in northern Germany, the police arrested a young man accused of rape after they analysed the DNA of his two brothers, who had participated in the dragnet. Partial matches between crime scene DNA profiles of the perpetrator and of the brothers’ profiles identified the young man as the suspect (Roewer, 2013, p. 7). In 2012, the Federal Constitutional Court of Germany decided against the future use in court of evidence derived from familial searching. However, in November 2013, the German government decided to legalize familial searching if it is used as part of a DNA dragnet (Lee, 2016, p. 218). This decision was controversial after the court decision from the previous year had determined that there was no legal basis for familial searching’s use in that way (Lee, 2016, p. 218). Yet, in 2017, the legislator legalized familial searching with the ‘DNA-Beinahetreffer’ (Voß, 2017, p. 5).

As FDP was regularized at the federal level, the regulatory process and accompanying public debate provide insights on how forensic genetic innovations have stimulated controversies recently. A range of symposiums and workshops to discuss and debate the possibility of permitting FDP already took place in 2017, including those hosted by the Ministry of Justice (March 2017) and by the University of Lübeck/Kiel at the Department of Legal Medicine (December 2017). Samuel and Prainsack (2018, p. 41) have explored the public debates and controversies accompanying the legal initiatives arguing in favour of FDP. The authors named a couple of ‘key players’ in the debates, such as an interdisciplinary Freiburg-based group that includes geneticists and biostatisticians, as well as the German Stain Commission, the board of the German Society for Legal Medicine, and the Working Group of Academic Forensic Geneticists. Most of the experts argue that ‘this technology is a meaningful expansion of forensic methods as long as an appropriate regulatory framework protects against misuse’ (Samuel & Prainsack, 2018, p. 41). In 2019, a final consultation process was conducted by the Federal Ministry of Justice and Consumer Protection and provoked supportive as well as critical invited and uninvited advisory opinions on the draft law in response. Zieger and Roewer (2019), two forensic geneticists, have argued that the intrusion into personal integrity is at stake with the regularization of FDP and that its proportionality needs to be constantly adjusted according to its actual applications in practice and the ongoing scientific development in the area of forensic genetics. Schneider, Prainsack, and Kayser (2019, p. 879) recommended to complement the regularization of FDP by measures of transparency and proportionality which counter tendencies of growing xenophobia and potential discrimination of minority populations through trainings of forensic geneticists as well as of criminal justice actors. Favouring the establishment of oversight institutions which anticipate and oversee the ambiguous aspects related to FDP, forensic geneticists such as Zieger and Roewer (2019) also proposed to install a national ethics committee for extended forensic DNA analyses which would decide its application on a case-by-case basis. Such recommendations have not been considered up to now.

Bordering Practices and Ordering Transnational DNA Data Exchange

The origins of the Prüm Decision go back to a German initiative that followed the G8 summit of 1996, when the interior and justice ministers of the eight most powerful industrial nations agreed to improve information exchange and establish national and international DNA databases (Töpfer, 2016). It was Germany’s Interior Minister, Otto Schily, who negotiated the Prüm contract and its technical implementation with the Netherlands, Belgium and Luxembourg, Austria, France and Spain. In 2005 this group of countries signed the Prüm Convention in the German town Prüm.

In accordance with Article 51 of the Prüm Convention, Schily’s successor, Wolfgang Schäuble, began to ask other countries to participate. Töpfer (2016) states that Schäuble’s approach was an open affront to the EU Commission, as he mobilized seven further Member States to ratify the Convention soon after and thus bypassed the EU institutions and processes. It is said that this was done to avoid the lengthy processes of harmonizing data protection regimes (Töpfer, 2016, p. 812). Supported by interested Member States, Schäuble used the German Presidency of the Council of the EU in the first half of 2007 to secure the Europeanization of the Prüm model (Töpfer, 2016, p. 812). In 2008, the Prüm Convention was transformed into the Prüm Decision. Its development, choreographed and decided by a small group of Member States, followed the model of the Schengen agreement (which was likewise a German initiative) and shaped the particular standards of cross-border police collaboration in Europe (Töpfer, 2016, p. 813).

A particularly critical issue with regard to transnational DNA data exchange that raised criticism was the lower scientific standards applied to the storage of DNA profiles in the beginning of data exchange in Germany (Töpfer, 2010). German forensic laboratories used a lower number of markers in their analysis than other countries that joined the Prüm system early on, and this risked creating a higher number of false positive matches when exchanging data that would need to be double-checked (Santos, 2017). False positive matches match two profiles that do not derive from the same person. Scientific ambiguities and the risk of near matches, potentially leading to the incorrect identification of suspects, were therefore of great relevance in the German case. It is, thus, important to take into consideration the approaches to data security taken by other Member States with regard to the German data.

Kees van der Beek (2011, p. 10), a former custodian of the Dutch DNA database, has highlighted the lower quality of 600,000 reference DNA profiles contained in the German DNA database. The lower quality was seen in the comparably lower number of loci—the unique physical locations of a gene (or specific sequence of DNA) on a chromosome (Butler, 2009, p. 453). The DNA profiles in the German DNA database were based on a particular set of loci (the so-called old European Standard Set, which includes seven loci plus the locus SE33) to be applied in DNA testing and to produce DNA profiles. The particular circumstances of the reference DNA profiles in the German database increased the chance of near matches when comparing DNA profiles. Near matches occur when a locus does not match (completely) between two DNA profiles from the same person (ENFSI, 2017, p. 24) and require additional tests to exclude the probability that apparent matches are no matches. According to ENFSI (2017, p. 23), ‘the lower the number of loci, the higher the match probability of the DNA profile and the risk of near matches’. And Taverne and Broeders (2015, p. 40) have confirmed that there was a higher probability of false positive or adventitious matches—matches to the profile of a person who is not the true donor of that profile (Butler, 2009, p. 440)—in the early years of exchange in the Prüm system because of the overall larger number of matches with Germany.

Since the issue was addressed in the specialist groups of forensic geneticists European DNA Profiling Group (EDNAP) and ENFSI, Germany increased its standards in accordance with an ENFSI agreement that was formalized in 2009 by the EU Council of Interior and Justice Ministers (Töpfer, 2010, pp. 84–85; ABl. EU C 296/1 v. 5.12.2009) and that added five loci (to the existing seven) to the European Standard Set. A decision was made in favour of standardizing the number of loci across Member States participating in Prüm’s transnational DNA data exchange and in favour of extending the mandatory number of loci to be analysed in a DNA profile (Gill et al., 2006). In consequence, Germany increased the number of markers—the number of genes or specific DNA sequences of known location on a chromosome—that are used as a point of reference in the mapping of other loci (Butler, 2009, p. 453). Nonetheless, civil society actors in Germany have called for radical measures, including the abolition of the Prüm system (Gen-ethisches Netzwerk e.V., 2011), warning of risks relating to privacy, a lack of transparency and accountability, and manipulation of the assumption of innocence.

Regarding the dynamics of data border-crossings and the provision of access to data categories, Germany allows access to data on ‘convicted’, ‘suspects’ and ‘crime stains’, which are the most common categories exchanged among Member States (Council of the European Union, 2020). Its geographical position in Central Europe has made Germany interested in rapidly increasing its bilateral exchange relations. There is a clear priority to exchange data with neighbouring countries along particular German border zones, and such exchange is expected to be more productive in producing hits across databases than exchanges with other countries. This priority was most obvious in the initial choices Germany made in expanding its network for data exchange. Thus, for the first connection, made between the Dutch and German databases in July 2008, ‘approximately 25,000 Dutch crime scene profiles were submitted to Germany, and approximately 125,000 such profiles from Germany were sent to the Netherlands’ (Prainsack & Toom, 2010, p. 1122).

Regarding the national legacies of DNA databases and DNA technologies, Germany not only was among the countries which influenced the content and establishment of the Prüm system but has also continued to pull strings during the implementation and expansion of the Prüm system by attempting to put pressure on Member States that have been slow in engaging with Prüm. The dominant narrative of the German government repeatedly uses the rhetorical repertoire of blaming and shaming with regard to those Member States not yet participating properly in the Prüm system; in this, it echoes the debordering claims of the EU.

In 2016, the European Commission formally communicated to Italy, Croatia, Greece and Ireland that they were not in compliance with the EU rules regarding the exchange of DNA data to combat terrorism and serious crime and that it had initiated infringement proceedings (Phelan, 2017). The European Commission gave the respective national governments a period of two months in which to implement the Prüm Decision, highlighting the fact that they were supposed to have done so in 2011. In January 2017, Joachim Herrmann, the German Minister of the Interior of the Federal State of Bavaria, publicly complained that this group of countries should receive a penalty, arguing that countries that do not comply with EU orders on matters of anti-terrorist security should leave the Schengen space; his remarks were covered in the media internationally (Bandeira, 2017).

In terms of the motifs and notions of nationhood mobilized in complying with the Prüm system, it becomes obvious that Prüm has been a political project for the German government. A distinct national policy agenda in the context of security and crime control was pushed forward in an attempt to prevent rigid data protection regulations (Töpfer, 2016). In this, Germany manoeuvred outside EU institutions to align a smaller number of Member States to create borderless data flows and, thus, can be considered as the political architect behind the Prüm system. Only afterwards, through the joint agenda of some of the more proactive countries in the domain of international security—including Austria and France—aimed at regularization and Europeanization, did it become mainstream to get involved in transnational information flows.

In terms of hidden (dis)integration in Europe, we can confirm that the German case provides a complex scenario with regard to technical and scientific matters. On the one hand, the lower standards for the number of loci in DNA profiles—in comparison to other Member States such as the Netherlands—that were employed in the German database and generated 600,000 DNA reference profiles were a techno-scientific obstacle for some other countries exchanging data with Germany (Taverne & Broeders, 2015). On the other hand, the diverse number of loci used for DNA profiles across Member States triggered some debate. In consequence, further efforts were made to harmonize the techno-scientific standards of DNA data exchange and the rules for declaring matches across profiles. These efforts required also the integration of diverse understandings of the potential risks of DNA data exchange and how to cope with them. In summary, the German situation provoked the alignment over and anticipation of the risks of adventitious matches, which can result in innocent people being implicated in a crime. And Germany increased its standards regarding the number of loci used for DNA profiles to conform with the new European Standard Set.

From the German debordering approach, we learn about the diffusive mode of debordering and how German political actors have attempted to disseminate the Prüm regime to other Member States through the political arena by enforcing the political commitments to the principles of Prüm. Furthermore, we learn how diffusion takes place through being considered as an example for others of an expansive mode of debordering.