6th Panel denied habeas corpus to convict who did not want to provide data for storage in the criminal profile genetic bank
The 6th Panel of the STJ (Superior Court of Justice) denied habeas corpus a convict who did not want to provide biological material for storage in the criminal profile genetic bank.
The case reached the Court after the court of 1st Instance did not grant the habeas corpus on the grounds that the biological material will not be used to produce evidence in the case against the patient, which has already been concluded, although it may be used in possible future cases, even as proof of innocence.
According to the defense, the decision for the prisoner to be subjected to forced collection of biological material would be an offense to human dignity and privacy, in addition to violating the principles of autonomy of will, the presumption of innocence and the prohibition against self-incrimination.
DNA can only be used in future investigations
The rapporteur at the STJ, minister Sebastião Reis Junior, said that if there is no crime under investigation, the provision of the genetic profile does not lead to the production of evidence against the convict. He stated that the legal requirement seeks to increase the character of prevention special negative of the penalty.
“There is no need to talk about the obligation to produce evidence of a crime that has not yet occurred, is future and uncertain”said the magistrate.
The rapporteur stated that the right not to be forced to produce evidence against oneself has limitations in the legal system. He spoke of exceptions, such as disobedience in the face of an order to stop overt policing and the self-attribution of a false identity.
On the other hand, the minister said that there are situations in which the prohibition against self-incrimination applies, such as in the case of taking a breathalyzer test, testifying – even as a witness –, when this could incriminate the deponent, or, even, of providing vowel or graphic patterns for expert examination.
Genetic material increases the individual’s qualifications
Sebastião Reis Junior declared that the identification of the genetic profile is an expansion of the convict’s qualifications, possible due to technological advances, and can be used as evidence for future crimes.
For Sebastião Reis Junior, the obligation to provide biological material constitutes a procedure for classifying, individualizing and identifying the individual, and refusing to submit to collection would be the same as refusing to provide fingerprints in papilloscopic procedures at identification institutes.
The rapporteur stated that the use of genetic material as proof of facts prior to the determination of its provision could violate the principle that prohibits self-incrimination, but this is not under discussion in the case.
The minister said that topic 905 of the STF (Supreme Federal Court), which discusses the constitutionality of the requirement to provide the genetic profile, is pending judgment.
With information from STJ.
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