Paradigma da ponderação constitucional legal da criação de bases de dados genéticos para condenados | 2013

Author(s) Sara Raquel Azevedo dos Santos
Advisor(s) Mário João Ferreira Monte and Simas Santos
Year 2013

Synopsis Genetic and forensic expertise was introduced to Law with all the seduction and irresistibility that a highly reliable and deterministic means of proof may comprise. The 20th century reversed the guarantee based trend of the criminal procedural legislations, such were the world renowned events that cause fear and terror, such as terrorism and highly organized crime. The safety interests subverted the postulates for humanistic guarantees brought by the post-wars Constitutional movements. At the time, the atrocities committed by the State to the dignity of the human person required the acknowledgement of Fundamental Rights in the Constitution of the Republic unattainable by the State. These rights must be recognized in it as guarantee of the protection of citizens before the authoritarian and tyrant power of the State. Even though the same Constitution allows restrictions to the rights, it submits to strict material preconditions – the appropriateness, necessity and proportionality – foreseen in article 18, paragraph 2 of the Constitution of the Portuguese Republic. The criminal procedure, often considered the Constitutional Law applied, shall achieve justice while entirely respecting the Fundamental Rights, an often complex conciliation which, however, will always be guided by the concrete interests in confrontation, bearing the dignity of the human person as its limit. What does not seem to find criminal legitimacy is the measure that provides for the insertion of genetic profiles of convicted offenders in which a prison sentence of 3 or more years was specifically applied, since the insertion and endurance of highly sensitive data and potentially revealing of many other information in State databases presumes future crimes, which have not yet happened, on a Lombrosian assumption that the guilty, because they have committed an offense, will fall upon criminal activity again and therefore should bear a permanent compression of their right to privacy and informational selfdetermination, to the presumption of innocence (which they should be once again guaranteed as soon as they are convicted) and to the privilege against self-incrimination. Such measure restricting Fundamental rights must necessarily fulfill the material criteria of appropriateness, necessity and proportionality foreseen in article 18, paragraph 2 of the Constitution of the Portuguese Republic, and also requires an interest which sufficiently counterbalances with the constitutionally guaranteed individual interests. Only thus will the legislative measure, which requires the insertion of genetic profiles for convicted offenders whose penalty was not less than 3 years, not be condemned. Hence the urgent need for a legislative amendment.

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