ASSEMBLY OF THE REPUBLIC Law no. 40/2013 of 25 June 2013

Transcription

1 ASSEMBLY OF THE REPUBLIC Law no. 40/2013 of 25 June 2013 Approving the Law governing the Organisation and Modus Operandi of the DNA Profile Database Oversight Board and making the first amendment to Law no. 5/2008 of 12 February 2008 In accordance with Article 161(c) of the Constitution the Assembly of the Republic hereby decrees the following: CHAPTER I General provisions Article 1 Object The present Law regulates the organisation and modus operandi of the DNA Profile Database Oversight Board and the personal statue governing its members, and makes the first amendment to Law no. 5/2008 of 12 February. Article 2 Nature, attributes and competences 1 The DNA Profile Database Oversight Board shall be an independent administrative entity, with powers of authority, and shall answer solely to the Assembly of the Republic. 2 The competence to control the DNA Profile Database shall pertain to the Oversight Board, without prejudice to the Assembly of the Republic s powers of scrutiny in accordance with the Constitution. 3 The Oversight Board shall particularly have the competence: a) To authorise the undertaking of acts provided for by law, and particularly, following an opinion from the Legal Medical Council and after the data subject s death, to permit access to the information contained in the DNA Profile Database by his/her presumed heirs, on condition that the latter demonstrate legitimate interest and there is no serious risk of intrusion into the private life of the information subject;

2 b) To limit the communication of data to its subject to solely the information in the Database that concerns him/her and does not endanger state security, in which case the right to access shall be exercised via the Oversight Board; c) To limit the communication of data to its subject to solely the information in the Database that concerns him/her and does not endanger crime prevention or criminal investigation, in which case the right to access shall be exercised via the Oversight Board; d) To issue: i) An opinion on the Regulations governing the Operation of the Database, when they are approved or subject to amendment, and on any other matter whenever asked to so do; ii) On a par with the National Data Protection Commission (CNPD), an opinion on any legislation on matters regarding the use of genetic data for criminal investigation purposes, before or after the respective proceedings are brought, or on any legislation on matters regarding the use of genetic data for civil identification purposes; iii) On a par with the CNPD, a binding opinion on the communication of data contained in the DNA Profile Database to other entities for statistical or scientific investigation purposes; iv) On a par with the CNPD and upon receipt of a substantiated request, a binding prior opinion on data linkages not provided for in Article 20 of Law no. 5/2008 of 12 February 2008; e) To ask for and obtain clarifications and information that it deems necessary to the full exercise of its oversight powers from Instituto Nacional de Medicina Legal e Ciências Forenses, I. P. (INMLCF, I. P.), or from any entity that holds, or intervenes in the obtaining of, DNA profiles for criminal investigation or civil identification purposes; f) To obtain the necessary clarifications about specific questions regarding the operation of the DNA Profile Database, namely with regard to compliance with the security rules imposed by Article 27 of Law no. 5/2008 of 12 February 2008, from INMLCF, I. P. and from the Legal Medical Council; g) To make inspection visits designed to gather elements regarding the way in which the DNA Profile Database operates; h) To draw up reports on the operation of the DNA Profile Database for submission to the Assembly of the Republic at least once a year;

3 i) To order the President of INMLCF, I. P. to arrange for the elimination of DNA profiles that reveal information contrary to the provisions of Article 2(e) and of Article 12 of Law no. 5/2008 of 12 February 2008; j) To order the President of INMLCF, I. P. to arrange for the elimination of DNA profiles in accordance with the provisions of Article 26 of Law no. 5/2008 of 12 February 2008; l) To order the President of INMLCF, I. P. to arrange for the destruction of samples in accordance with Article 34 of Law no. 5/2008 of 12 February 2008; m) To order the destruction of DNA profile databases that are not authorised under Law no. 5/2008 of 12 February 2008, as well as to order the destruction of the corresponding samples; n) Following a substantiated request in accordance with Article 7 of Law no.74/2009 of 12 August 2009, which approved the regime applicable to the exchange of data and information of a criminal nature between authorities of the Member States of the European Union, transposing Council Framework Decision 2006/960/JHA of 18 December 2006 into Portuguese law, to authorise the communication of DNA profile data, in a phase prior to the investigative phase, to the entities provided for in the aforesaid Law; o) To oversee compliance with the provisions of Article 7 of Law no. 5/2008 of 12 February 2008 by the Borders and Immigration Service when the latter collects samples in order to obtain DNA profiles for civil investigation purposes under the provisions of Article 212(1) and (4) of Law no. 23/2007 of 4 July 2007, which approved the legal regime governing the entry, stay and removal of foreigners into, in and from Portuguese territory, as amended by Law no. 29/2012 of 9 August 2012; p) To issue instructions on specific questions that it analyses on its own initiative or are put to it; q) To submit suggestions for legislative initiatives on the matter regulated by the present Law, and to issue an opinion whenever any legislative initiative on the same matter is underway; r) To promote relations and exchanges of ideas and experiences with other international bodies with the same functions in Member States of the European Union. Article 3 Modus operandi

4 1 The Oversight Board shall operate at the base of the DNA Profile Database in Coimbra, and the Assembly of the Republic shall be responsible for ensuring that it has the resources that are indispensable to fulfilment of its competences and the functions attributed to it, particularly in terms of appropriate facilities, secretarial staff and logistical support. 2 The Assembly of the Republic must include in its budget the financial allocation needed to ensure the operational independence of the Oversight Board, basing itself on a proposal submitted by the latter. 3 Whenever necessary the Oversight Board may resort to outside experts, namely in order to assess the nature of the DNA markers used to perform expert procedures and obtain DNA profiles, in such a way as to be able to conclude whether the latter only furnish information that does not make it possible to obtain data regarding health or specific hereditary characteristics, in harmony with the provisions of Article 2(e) and of Article 12 of Law no. 5/2008 of 12 February The experts or technical specialists to whom the Oversight Board resorts in order to fulfil its functions shall be subject to the duty of secrecy provided for in Article 28 of Law no. 5/2008 of 12 February Article 4 Duty of cooperation 1 Public and private entities must provide the Oversight Board with their cooperation, furnishing it with all the information it requests from them in the exercise of its competences. 2 The duty of cooperation shall particularly be imposed whenever, in order to fully exercise its functions, the Oversight Board needs to examine the IT system and manual or computerised DNA profile files, as well as all the documentation regarding their treatment and transmission. 3 Within the scope of their competences and the functions attributed to them, the Oversight Board, its members and all the technical specialists mandated and supervised by it shall have the right of access to the IT systems that support the treatment of DNA profiles, as well as to the documentation referred to in the previous paragraph. 4 Acting with regard to the Legal Medical Council, the Oversight Board must promote and support the drawing up of a code of conduct designed to contribute to the proper execution of Law no. 5/2008 of 12 February 2008.

5 5 Whenever the Oversight Board has knowledge of a possible breach of the personal data rules set out in Law no. 5/2008 of 12 February 2008 and/or Law no. 67/98 of 26 October 1998 (Personal Data Protection Law), it must communicate this to the CNPD. 6 When the response to requests made within the scope of Article 8 of Law no. 5/2008 of 12 February 2008 includes the communication of DNA profiles inserted into the national database, INMLCF, I. P. must communicate the request to the Oversight Board within a time limit of at most three working days, and the Oversight Board shall reserve the possibility of issuing an opinion at a later date. CHAPTER II Members of the Oversight Board Article 5 Appointment and term of office 1 The Oversight Board shall be composed of three citizens whose fitness for the position is recognised, and shall be appointed by the Assembly of the Republic, using d Hondt s highest average method. 2 The members of the Oversight Board shall appear on a list published in Series I of the Diário da República. 3 The members of the Oversight Board shall be installed before the Assembly of the Republic in the ten days following publication of the aforesaid list, and may resign their office by means of a written declaration, to be submitted to the President of the Assembly of the Republic and published in Series II of the Diário da República. 4 Their term of office shall be four years, shall end when the new members are installed, and may not be renewed more than once. Article 6 Lack of capacity and incompatibilities 1 Only citizens who are in full possession of their civil and political rights may be members of the Oversight Board. 2 The position of member of other boards, commissions or committees with oversight, supervisory or control functions of an analogous nature shall be incompatible with exercise of the activity of member of the Oversight Board.

6 Article 7 Security of tenure 1 The members of the Oversight Board shall have secure tenure, and they may not cease functions before the end of their term of office, except in the following cases: a) Death, or physical impossibility that is permanent or whose duration is expected to exceed the date on which the term of office ends; b) Resignation. 2 In cases in which a position becomes vacant for one of the reasons provided for in the previous paragraph, the vacancy must be filled within a time limit of sixty days after its existence is verified, by appointment of a new member by the Assembly of the Republic. 3 The member appointed in accordance with the previous paragraph shall complete the term of office of the member he/she replaced. Article 8 Immunities 1 The members of the Oversight Board shall not be subject to civil, criminal or disciplinary liability for their votes or the opinions they issue in the exercise of their functions, without prejudice to fulfilment of the obligations applicable to them in accordance with the present Law. 2 No member of the Oversight Board may be detained or preventatively arrested without the authorisation of the Assembly of the Republic, save for a crime that is punishable by imprisonment for a term of more than three years and in flagrante delicto. 3 In the event that criminal proceedings are brought against any member of the Oversight Board and he/she is definitively charged, the Assembly of the Republic shall decide whether or not he/she must be suspended so that the proceedings can take their course. When the crime is punishable by imprisonment for a term of more than three years, the decision to suspend shall be mandatory. Article 9 Duties

7 1 The following shall be duties of the members of the Oversight Board: a) To exercise the respective office with the independence, impartiality and sense of mission inherent in the function they exercise; b) To contribute by means of their zeal, dedication and example to the proper application of Law no. 5/2008 of 12 February 2008; c) To keep secrecy in accordance with Article 28 of Law no. 5/2008 of 12 February The duty of secrecy referred to in the previous paragraph shall be maintained after the respective terms of office have ended. Article 10 Remuneratory statute 1 The members of the Oversight Board shall receive a fixed remuneration to be determined by Joint Order of the members of the government with responsibility for the Finance, Public Administration, Interior and Justice areas, with the possibility of accumulation with any other public or private remuneration. 2 The members of the Oversight Board shall benefit from the general social security regime, if they are not covered by another, more favourable, one. Article 11 Guarantees The members of the Oversight Board may not be prejudiced in terms of their placement, their professional career, their social benefits or their permanent employment as a result of the performance of their mandate, and absences from work due to Board meetings and activities shall be deemed justified for all purposes. Article 12 Identity card 1 The members of the Oversight Board shall have an identity card, to set out the position, benefits and rights inherent in their function.

8 2 The identity card shall simultaneously grant free transit and access to any place for strict fulfilment of the functions and responsibilities attributed to the Oversight Board. CHAPTER III The Oversight Board s modus operandi Article 13 Meetings 1 The Oversight Board shall operate on a permanent basis. 2 The Oversight Board shall have ordinary and extraordinary meetings. 3 Extraordinary meetings shall be held: a) At the initiative of the President; b) At the request of any of the Board members. 4 The Oversight Board s meetings shall not be public and shall be held at its facilities or, if the Board so decides, at any other place in Portuguese territory, and their frequency shall be established in such a way as to be appropriate to the performance of its functions. 5 When he/she sees fit and with the agreement of the other members of the Oversight Board, the President may invite any person whose presence is deemed useful to take part in meetings, save in the decisionmaking phase. 6 Minutes of the meetings shall be drawn up, and, following approval by the Oversight Board, shall be signed by the President and the member who served as secretary at that meeting. Article 14 Agenda 1 The agenda of each ordinary meeting shall be set by the President, and must be communicated to the other Board members at least five working days before the date on which it is scheduled to be held. 2 The agenda must include the items that are indicated for this purpose by any member, on condition that they fall within the organ s competences and the request is submitted in writing at least eight working days before the date of the meeting.

9 Article 15 Decisions 1 The Oversight Board may only meet and take decisions in the presence of at least two of its members. 2 The Oversight Board s decisions shall be taken by a majority of the members present, and the President shall have a casting vote. Article 16 The Oversight Board s relations with the Assembly of the Republic 1 The Assembly of the Republic may request that the Oversight Board attend parliamentary committees, with the objective of obtaining clarifications about the exercise of its activities. 2 The opinions regarding the operation of the DNA Profile Database shall be presented to parliamentary committees. 3 The meetings referred to in the previous paragraphs shall be held in camera, and everyone who attends them shall be subject to the duty of secrecy in accordance with Article 28 of Law no. 5/2008 of 12 February Article 17 Publicising decisions 1 The following shall be published in Series II of the Diário da República: a) The authorisation referred to in Article 2(3)(a); b) The limitation on the communication of data referred to in Article 2(3)(b); c) Binding opinions issued by the Oversight Board; d) The sample destruction order referred to in Article 2(3)(l) and in Article 34 of Law no. 5/2008 of 12 February 2008; e) Instructions issued by the Oversight Board, on condition that it deems their publication necessary. 2 All the decisions referred to in the previous paragraph shall also be published on the Oversight Board s webpage, as shall other decisions and instructions it proves necessary to publicise.

10 3 Following approval by the Assembly of the Republic, the reports submitted in accordance with Article 2(3)(h) shall be publicised on the Oversight Board s official webpage. 4 In any of the cases referred to in the previous paragraphs, with the exception of documents delivered directly to the Assembly of the Republic, the Oversight Board shall reserve the possibility of omitting any items that make it possible to identify the persons involved. Article 18 Claims, complaints and petitions 1 Claims, complaints and petitions shall be addressed to the Oversight Board in writing, indicating the name and address of their authors, and confirmation of the latter s identity may be required. 2 The right of petition may be exercised by post, electronic mail or any other written means of communication. 3 When the question raised does not fall within the competences of the Oversight Board, the latter must forward it to the competent entity and inform the petition s author of this fact. Article 19 Formalities 1 Neither documents addressed to the Oversight Board, nor the subsequent procedures, shall be subject to special formalities. 2 The Oversight Board may approve models or forms on paper or using an electronic medium, with a view to making it possible to improve both the preparatory elements attached to requests for an opinion or authorisation, and notifications regarding the treatment of personal data. 3 Requests for an opinion on legislative initiatives must be sent to the Oversight Board by the competent parliamentary committee. 4 Requests for an opinion on any other Community or international legal instruments that are being prepared with regard to the DNA Profile Database must be sent to the Oversight Board by the entity that represents the Portuguese State in the process of drawing up the initiative. Article 20 The President s competences and substitution

11 1 The Oversight Board shall be presided over by the member who occupied the first place on the list that received the most votes. 2 The following competences shall pertain to the President: a) To represent the Oversight Board; b) To superintend the secretariat; c) To convene sessions and set the agenda; d) After first consulting the Oversight Board, to appoint the Secretary and the auxiliary technical specialist; e) To submit the activity plan to the Oversight Board for approval; f) In general, to ensure that the law is complied with and that decisions are in line with the legal requirements. 3 When absent or unable to perform his functions, the President shall be substituted by the Board member designated by the Oversight Board. Article 21 Regime governing Oversight Board s expenses and revenues 1 The Oversight Board s revenues and expenses shall be set out in a draft annual budget for submission to the Assembly of the Republic. 2 In addition to the funds that are allocated to the Oversight Board in the Assembly of the Republic s budget, the following shall constitute revenues of the Board: a) Ten per cent of the revenues received by INMLCF, I. P. and charged to Portuguese or foreign public and private entities, and to private individuals for the performance of exams, tests and expert procedures designed to obtain DNA profiles for insertion into the national DNA Profile Database, in accordance with Law no. 5/2008 of 12 February 2008; b) The product of sales of publications; c) The product of charges for issuing certificates and for access to information contained in the DNA Profile Database; d) Fifty per cent of the product of fines imposed in accordance with Article 27(4); e) The management balance from the previous year; f) Any other revenues that are attributed to it by law or contract.

12 3 The Oversight Board s expenses shall be those that result from the costs and liabilities derived from its operation, together with any others regarding the pursuit of the functions attributed to it. 4 The draft annual budget shall require approval by all the members of the Oversight Board. 5 The accounts of the Oversight Board shall be subject to control by the Court of Auditors, as laid down by law. CHAPTER IV Secretariat Article 22 Secretary of the Oversight Board 1 The Oversight Board shall have a Secretary. 2 The Secretary shall be appointed from among workers who possess a pre-existing public legal employment relationship, a bachelor s or licentiate degree and the competency to perform the office, by order of the President and following a favourable opinion from the Oversight Board. 3 The following competences in particular shall pertain to the Secretary: a) To act as secretary of the Oversight Board s meetings; b) To handle the Oversight Board s day-to-day affairs; c) To arrange for implementation of the Oversight Board s decisions; d) To ensure that the support services are well organised and operate well, particularly in terms of financial management and management of the Oversight Board s facilities and equipment, in accordance with guidelines given by the Board s President; e) To assist the Oversight Board in drawing up and executing the annual budget that is to be submitted to the Assembly of the Republic; f) With the assistance of one of the Board members, to draw up the draft report provided for in Article 2(3)(h). 4 The Secretary shall be appointed under a service commission regime, for four-year periods. 5 The Secretary may be assisted by an auxiliary technical specialist, particularly with regard to the tasks related to the Board s budget.

13 6 The auxiliary technical specialist shall be appointed by the President from among workers who possess a pre-existing public legal employment relationship. 7 The Secretary shall be exempt from any fixed working schedule, and therefore no overtime pay shall be due. Article 23 Staff regime The Secretary of the Oversight Board and the auxiliary technical specialist shall be subject to the legal regime governing public sector employment. Article 24 Identity card The Secretary of the Oversight Board shall have an identity card, to set out the position he/she occupies and the rights and benefits inherent in his/her function. Article 25 Professional secrecy 1 The Secretary and the auxiliary technical specialist shall be subject to the duty of secrecy with regard to all the information of which they have knowledge as a result of their activities. 2 The duty of secrecy shall be maintained after their functions have ended. CHAPTER V Regime governing criminal and administrative offences Article 26 Creation of unauthorised DNA profile databases 1 Whosoever creates a DNA profile database outside the cases authorised by Law no. 5/2008 of 12 February 2008 shall be punished by a prison term of up to two years or a fine of up to two hundred and forty days. 2 Attempts shall be punishable.

14 Article 27 Administrative offences 1 The following forms of behaviour shall constitute administrative offences punishable by fines of between one thousand five hundred and fifteen thousand euros: a) Breach of the duty of cooperation provided for in Article 2(3)(e) and Article 4(1), (2), (3) and (6); b) Failure to destroy the samples within a time limit of thirty days following the notification sent to INMLCF, I. P. by the Oversight Board; c) Failure to eliminate the DNA profiles under the provisions of Article 2(3)(i) or (j) within a time limit of thirty days following the notification sent to INMLCF, I. P. by the Oversight Board; d) Communication of DNA profiles and/or of the corresponding personal data by INMLCF, I. P. outside the cases provided for in Article 19(1) of Law no. 5/2008 of 12 February 2008; e) Conservation of samples outside the cases authorised by Law no. 5/2008 of 12 February 2008; f) Failure to fulfil the right of access laid down in Article 24(2) and (3) of Law no. 5/2008 of 12 February Negligence shall always be punished in the administrative offences provided for in the previous paragraph. 3 The competence to impose the fines provided for in paragraph (1) shall pertain to the President of the Oversight Board, upon a prior decision by the Board. 4 The sums charged as a result of the imposition of the fines provided for in paragraph (1) shall revert in equal amounts to the state and the Oversight Board. 5 The administrative offences provided for in paragraph (1) shall be subsidiarily subject to the General Regime governing Mere Social Administrative Offences set out in Executive Law no. 433/82 of 27 October 1982, as amended by Executive Laws nos. 356/89 of 17 October 1989, 244/95 of 14 September 1995 and 323/2001 of 17 December 2001, and by Law no. 109/2001 of 24 December CHAPTER VI

15 Final provisions Article 28 Amendment to Law no. 5/2008 of 12 February 2008 Articles 5 and 30 of Law no. 5/2008 of 12 February 2008 shall now read as follows: Article 5 [...] The analysis of the DNA profiles may be performed by other laboratories upon authorisation by the Ministry of Justice and the ministry with oversight of them Article 30 [...] The Oversight Board shall exercise the competences defined in the Organic Law referred to in the previous paragraph. 3 The members of the Oversight Board shall receive a fixed remuneration to be determined by Joint Order of the members of the government with responsibility for the Finance, Public Administration, Interior and Justice areas, with the possibility of accumulation with any other public or private remuneration. 4 The Oversight Board shall be based in Coimbra, at the base of the DNA Profile Database, and the human, administrative, technical and logistical resources for its operation shall be provided and assured by the Assembly of the Republic, by means of a special allocation included in its budget. Article 29 Entry into force The present Law shall enter into force with the State Budget following its publication. Passed on 10 May 2013.

16 The President of the Assembly of the Republic, Maria da Assunção A. Esteves. Enacted on 14 June Let it be published. The President of the Republic, ANÍBAL CAVACO SILVA. Countersigned on 19 June The Prime Minister, Pedro Passos Coelho.