DNA criminal investigation – DNA database, mandatory DNA collection and time limit for data retention

• Main Authors: Antonio Henrique Graciano Suxberger, Valtan Timbó Martins Mendes Furtado
• Format: Article
• Language: Spanish
• Published: Instituto Brasileiro de Direito Processual Penal 2018-06-01
• Series: Revista Brasileira de Direito Processual Penal
• Subjects: Banco de dados de perfis genéticos; Investigação criminal; Direitos fundamentais; Não autoincriminação.
• Online Access: http://www.ibraspp.com.br/revista/index.php/RBDPP/article/view/122

This paper examines the legal framing of DNA database and DNA investigations in Brazil. According to Law n. 12.654/2012, DNA may be extracted from both convicted criminals and people under investigation to create a profile to be placed in a national database in the hopes that it will enhance criminal investigations. From literature review and legislation analysis, this study provides basic information on DNA profiling and database, identifies conflicts between certain fundamental rights (specially privacy and public safety) and shows how DNA database for forensic purposes are framed in Brazil and abroad. The most important part of the paper (a) reaches the conclusion that Brazilian law respects the constitutional right to non self-incrimination and (b) proposes and interpretation of the law regarding the time limit for data retention. This essay aims to contribute to the necessary debate previous to Brazilian Supreme Court’s decision on the constitutionality of Law n. 12.654/2012 and its limits. The paper reaches the conclusion that Brazilian law is potentially an efficient tool to improve the effectiveness of criminal investigation and evidence in Brazil.