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DNA and the ECHR: rights, rules and technicalities. Liz Heffernan Trinity College Dublin. Nuances of Legal Analysis. Results and reasoning Majority and individual judgments Concurrences and dissents Details, caveats and provisos Precedents, ratio decidendi and obiter dicta. - PowerPoint PPT Presentation
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DNA and the ECHR: rights, rules and technicalities
Liz Heffernan
Trinity College Dublin
Results and reasoning
Majority and individual judgments
Concurrences and dissents
Details, caveats and provisos
Precedents, ratio decidendi and obiter dicta
ECtHR held that the practice in England and Wales of indefinitely retaining the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of criminal offences violates Article 8 ECHR
Consensus among 17 judges
Robust nature of protection afforded to informational privacy
Article 8 – privacy
Article 14 – non discrimination
Article 6 – fair trial
1. Everyone has the right to respect for his private … life …
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety … for the prevention of disorder or crime or for the protection of the rights of others.
1. Has there been an interference?2. Was the interference in accordance
with law?3. Did the interference pursue a
legitimate aim?4. Was the interference necessary in a
democratic society?
Cellular samplesDNA profilesFingerprintsOther forms of dataEU data protection regimeConcept of privacy
RetentionUseAutomated processing
Onus on respondent state to provide relevant and sufficient evidence that practice is proportionate to a pressing social need
Margin of appreciation
European practice and level of consensus
• Blanket, indiscriminate, open-ended nature of power of retention• Nature or gravity of offence• Age of offender• Indefinite retention – no time limit
• Failed to strike a fair balance between the competing public and private interests
• Only limited possibilities to have data removed and materials destroyed
• No independent review of justification for retention according to defined criteria• E.g. Seriousness of offence• E.g. Previous arrests and strength of suspicion• E.g. Other special circumstances
Technological leader
Practical benefit to policing – empirical evidence
Revision in law, practice and judicial thinking
Onus on national authorities to comply and to monitor compliance
Reflection on our conceptualisation of informational privacy◦ Types of data◦ Nature of activities and purposes◦ Governance of databasing
Taking of material and data for investigative purposes
Retention while persons remain suspects
Limited retention of data of former suspects in exceptional circumstances
RightsRulesTechnicalities
Legislative drafting
Implications of S & Marper for retention of fingerprints and for retention of DNA material under existing regime and proposed DNA database
People (DPP) v Boyce [2008] IESC 62