Cuestiones procesales y sustantivas relativas a la prueba de ADN en el proceso penal español. Análisis del artículo 129 bis del Código Penal

Résumé

The emergence ofDNA evidence in criminal proceedings has greatly facilitated the work of investigators in many crimes, but this powerful tool needs to be used with full respect for fundamental rights, which are the cornerstone of our rule of law and a democratic society. In order to approach the study and correctly understand DNA testing, it is essential to understand that there is a synergy between the biological elements and the legal elements. Only this complete approach to the subject allows for its correct understanding. Traditionally a distinction has been made between coding DNA and non-coding DNA or junk DNA, stating that non-coding DNA does not affect an individual's right to privacy. Modern scientific studies, however, claim the opposite. Non-coding DNA also plays important roles in the development of our bodies. Non-coding DNA is not neutral and its forensic use directly affects the right to genetic privacy of individuals. The practice of DNA testing has a strong impact on the fundamental rights of individuals, especially in the area of privacy. Although the right to genetic privacy has traditionally been understood as part of the more generic right to privacy of individuals, modern scientific advances have made it possible to know and understand the characteristics of the human genome increasingly better, so that today we can already speak of the need to make the right to genetic privacy completely independent. In this way, the necessary and precise instruments can be established to ensure that they are respected and protected. Based on these considerations, this study attempts to delve deeper into procedural or substantive issues related to DNA testing in criminal proceedings, such as the need for legal assistance to the arrested person for the collection of the DNA sample, the proportionate use of force to obtain the sample in case of refusal, mass DNA testing or surreptitious DNA testing, among others. The genesis of Article 129 bis of the Criminal Code lies in the growing interest of all Countries in exchanging genetic information in order to ensure the prosecution of the most serious crimes, to combat cross-border crime and terrorism, which means that this precept draws on international agreements and treaties in this area and on European Community legislation. Article 129 bis ofthe Criminal Code contains excessively open clauses in its wording, which creates considerable legal uncertainty in the application ofthis precept.