Possibility of introducing Innocence (DNA) Projects in Croatia Assist. prof. dr.sc. Marta Dragičević Prtenjača Assist. prof. dr. sc. Sunčana Roksandić Vidlička (Faculty of Law, University of Zagreb, Croatia) 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE Structure Legal framework Gathering /obtaining Keeping Legal basis Models Conclusion 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE 1. Legal framework Criminal Procedural Act (OG 152/08,76/09, 80/11,91/12, 143/12, 56/13, 145/13, 152/14, 70/17; subsequently: CPA) Art.327a and Art. 501 CPA Imprisonment Act (OG 128/99, 55/00, 59/00, 129/00, 59/01, 67/01, 11/02, 190/03, 76/07, 27/08, 83/09, 18/11, 48/11,125/11, 56/13, 150/13; subsequently: IA) Art.174a IA Criminal Code (OG 125/11, 144/12, 56/15, 61/15, 101/17; subsequently: CC) Ordinance on the manner of gathering biological material and conducting molecular- genetic analysis (OG 120/14) 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE 2. Gathering /obtaining from suspect from victim another person (but not her own biological material) at the crime scene (Art. 327. (2) CPA 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE 2. Gathering /obtaining by the police by the State Attorney's Office by the Court 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE 2. Gathering /obtaining by the police: from a suspect for criminal offence punishable by prison sentence, can take, without his consent (non-intimate) samples for DNA analysis (molecular genetic analysis) for the purpose of identification (Art 211 (3) CPA) 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018 2. Gathering /obtaining by the State Attorney's Office : samples of biological material from the defendant (Art. 327 (5) CPA) samples of biological material from the victims and other persons (with written consent- before signing the said persons shall be notified of the purpose for which the sample in question will be taken and its use in the performance of molecular genetic analysis) (Art. 327 (6) CPA) by the Court: if the said consent is not given (victims or other persons), the taking of samples of biological material from the said persons and the molecular genetic analysis thereon may be ordered, on the recommendation of the State Attorney, by the court. (Art. 327 (6) CPA) 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE 2. Gathering /obtaining Execution of Imprisonment Act: Art. 174(a) – mandatory DNA sample gathering from prisoners serving imprisonment sentences consent is not required not yet fully applied in practice 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018 3. Keeping CPA (Art. 327.) allowed: 20 years of keeping DNA data obtained before and during criminal proceedings without difference whether there was a conviction or acquittal- Decision of the Constitutional court 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE 3. Keeping Croatian Constitutional Court Decision (I-448/09, 19/7/2012) CPA violates rule of law in connection with right to privacy because: 1. CPA does not differentiate personal data obtained through DNA analysis from personal data obtained in other ways 2. CPA allows 20 years of keeping DNA data obtained before and during criminal proceedings without difference whether there was a conviction or acquittal 3. CPA delegates the authority to the ministers of justice and health to regulate the conditions, modalities, keeping, analysis and protection of biological materials 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018 3. Keeping CPA (Art. 327.a) allows keeping data (gathered from the samples): 10 years from final decision -acquittal, or dismissed, and samples taken from victims and other persons (Art.327.a./3 CPA) 20 years after, conviction (gathered from convicted person; Art.327.a./2 CPA) 40 years; if offence has proscribed penalty of 10 years of imprisonment or more; or for sexual offences – 5 years (Art.327.a./2 CPA) permanently- the data collected by means of molecular genetic analysis of the samples found at the scene as well as any other samples not linked to a particular person (Art.327.a./5 CPA) 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018 3. Keeping Problem regarding coropra delicti (biological samples): a) destruction of DNA samples: once they are linked to the trace, or once the determination of identity or origin is made „..tested material belonging to the persons may be used and processed only for as long as any link to the trace or the determination of identity or origin is not ruled out”; Art. 327.a./1 CPA b) storage of samples and biological traces which contain DNA: data gathered from molecular –genetic analysis and biological material (traces of unknown origin and disputable traces) is kept in only one laboratory ‘Ivan Vučetić’- official laboratory (Ministry of internal affairs) cca 35 000 profiles (cca 4 mil. people population) It is not regulated for how long 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018 4. Legal basis Reopening of Criminal proceedings (Art. 501 CPA): Criminal proceedings terminated by a final judgement may be reopened to the benefit of the defendant, regardless of his presence if new facts or new evidence are presented which alone or in relation to previous evidence appear likely to lead to the acquittal of the person (Art. 501 par.1 al. 3CPA) 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018 5. Models Special ombudsman or special division of ombudsman Special division in State Attorney’s Office Special form of free legal aid in attorney's practice- in the Croatian Bar Association Attorney’s Chamber Form of NGO- association Legal clinics as part of Faculty’s (of Law) Special center –form of public –private partnership 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

3rd EUROPEAN INNOCENCE NETWORK CONFERENCE 6. Conclusion reopening of criminal proceeding (Art. 501. CPA) innocence projects in Croatia / yes or no? 2017 - 12 091 (convicted persons) legal clinics -the most probable way problems, shortcoming and legal gaps – especially relating the storage of evidence that contains biological traces better legal frame - special Code regulating Innocence projects (who, under which conditions, etc.) 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018

THANK YOU FOR YOUR ATTENTION! 3rd EUROPEAN INNOCENCE NETWORK CONFERENCE November, 2018