OSCE/ODIHR database of legal reviews and legislation

The Draft Amendments seek to reform the Swiss DNA Profiles Act and relevant criminal procedure legislation by introducing further means of DNA profiling, notably searching for potential relatives of a person whose DNA trace was found at a crime scene (kinship matching) and phenotyping. Additional changes introduced to the DNA Profiles Act concern the regulation of surplus information gained, the destruction of DNA samples, as well as a revised approach to retention periods and deletion of DNA profiles.

As evidenced in key case law of the European Court of Human Rights, the collection, processing and storage of DNA samples and profiles interfere with the right to private life and may also raise concerns in relation to other rights, such as the right to a fair trial and to the presumption of innocence and the right to freedom from discrimination. It is thus essential to clarify the necessity of such additional profiling measures, in particular in terms of their nature and scope, as well as the proportionality of such measures, and in which cases they will be applied. Moreover, the retention of DNA samples and DNA profiles in relevant databases needs to be subjected to proper oversight mechanisms, involving independent bodies.

Summary: While welcoming Switzerland’s willingness to establish a national human rights institution (NHRI) in compliance with the UN Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights (Paris Principles), the Opinion notes that the Draft Law does not include important aspects pertaining to its status and functioning, especially those at the core of the institution’s basic guarantees of independence. The fact that the NHRI will be attached to universities or higher education institutions and be governed by a contract between an administrative unit of the Federal Council and the NHRI also raises concerns, as this approach could call into question the permanence and independence of this new entity. ODIHR thus provides a number of concrete recommendations to ensure full compliance with the Paris Principles, particularly with regard to the expansion of the NHRI’s mandate and specific safeguards to protect the NHRI’s independence, while guaranteeing that the NHRI has the powers to perform its mandate and ensuring its pluralist and gender-balanced composition at all levels.