1. 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)
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November, 2018

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Structure
Legal framework
Gathering /obtaining
Keeping
Legal basis
Models
Conclusion
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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)
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2. Gathering /obtaining
from suspect
from victim
another person (but not her own biological material)
at the crime scene (Art (2) CPA
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2. Gathering /obtaining
by the police
by the State Attorney's Office
by the Court
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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)
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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)
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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
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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
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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
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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)
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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 profiles (cca 4 mil. people population)
It is not regulated for how long
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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)
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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
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6. Conclusion
reopening of criminal proceeding (Art CPA)
innocence projects in Croatia / yes or no?
(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.)
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16. THANK YOU FOR YOUR ATTENTION!
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