At a glance
Home
About the Lisbon Network
Secretariat
  THE NETWORK
Bureau
Members and associated training programmes
The activities of the Lisbon Network have been integrated to the CEPEJ activities in January 2011. Click here to get to the new homepage.
Activities
Calendar
Plenary meeting reports
Bureau and working group meeting reports
Lisbon Network was talked about ...
Themis Competition
Documents
Network's strategy
Minimum Corpus of the CoE standards
  QUESTIONNAIRES
Structural and functional features of training institutions
Recruitment and initial training of magistrates
In-service training of magistrates
  OTHER DOCUMENTS
Experts' reports
Links
Coe bodies and international organisations
News from our patners
Forum
Discussion Forum
Users' guide of the Forum
Reset password

THEMIS 2008

ICCM CATEGORY

REQUEST FOR AN EXAM TO DETERMINE THE DNA PROFILE UNDER A REQUEST FOR MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

Introduction

Migrations in last century in Europe changed the traditional view of judicial activity.
A pattern characterized by an almost exclusively national crime has led to a new model, which relates actors of various nationalities.
Since the 2nd half of the twentieth century that judicial activity felt the need to respond to the phenomenon of cross-border crime.
In Europe, this phenomenon is felt with particular acuteness since the early 90’s, at which time the European Union has become an open space where people, goods, services and capital move with almost total freedom.
The international judicial cooperation aims, precisely, under a common goal and in the context of united efforts, to address these problems and ensure the effective protection of citizens' rights, when several legal jurisdictions are concerned.
The cooperation has been deepened and has taken many forms, and this work sought focus on the most significant judicial cooperation instruments in criminal matters, such as International Treaties, Conventions drawn up within the framework of the Council of Europe and the European Union, as well as Bilateral Agreements.
The transmission of requests for mutual assistance has evolved from traditional diplomatic means to a new form of direct transmission between judicial authorities, more flexible, simple and quick.
The mobility of citizens requires a greater coordination between the judicial authorities, maxime common mechanisms for uniformity of procedures, enabling requests for cooperation not to yield for procedural reasons.
The phenomenon of cooperation is very common but not very deeply studied by legal practitioners, and that, by itself, justifies the choice of this work’s subject.
It is an instrument aimed at the practice and its ultimate goal is to help the daily work of Portuguese judges.
A manual of best practices should cover most cooperation situations, with which courts deal on a regular basis.
This would be a herculean task and the disadvantages would outweigh the purpose of easy consultation that naturally presides to a document of this nature.
Therefore, the choice fell on a representative range of countries with which Portugal has a close collaboration relationship, always having in mind to cover various forms of cooperative procedures.
Specifically, the choice of Brazil was motivated by the strong ties that unite it to Portugal, given its common past history and the existence of a bilateral agreement precisely in this area of judicial cooperation in criminal matters.
Spain proved to be evident due to the common border with Portugal, which justified the celebration of a bilateral agreement that includes the existence of specific border courts with specificities at the cooperation level.
France is another country of reference due to the the migration flux that over the years occurred between the two countries.
A similar plea chaired the choice of Switzerland. This country presents the uniqueness of not belonging to the European Union, so cooperation is governed by rules adopted by the Council of Europe.
Judicial cooperation is already a part of our quotidian, and will certainly tend to increase with the rising mobility of people, so judicial practice has to learn how to respond to this challenge.
This guide seeks to address some issues that the relationship between foreign authorities could bring on to judges, to which the prolixity of instruments with international inclination and the small number of articles on this subject will not be strange.
If this guide is useful in courts’ daily life, contributes to the good performance of judges and thus provides a more efficient and quick administration of justice on behalf of citizens, we will have reached our goal.

Brazil
Request for an exam to determine the DNA profile under a request for mutual legal assistance in criminal matters issued by Portugal and addressed to Brazil

1. Legal framework

1.1. The exam for determination of the DNA profile under the Portuguese law
In accordance with articles 154 n. 2 and 172 n. 2 of the Criminal Procedure Code (wording introduced by Law n. 48/2007, August 29), the dispacht ordering the expertise or the exam on the physical characteristics of a person who did not give her/his consent is of the competence of the judge, who must ponder the need for such expertise or exam and the right to personal integrity and privacy of the above-mentioned person.

1.2. The exam for determination of the DNA profile under the Brazilian law
· Article 105, I, sub-paragraph “i”, from Brazilian Constitution
· Articles 780 to 786 of the Criminal Procedure Code.
· Resolution 9/2005, from the High Justice Court Presidency.

1.3. Legislation of national and international origin on the request for examination to determine the DNA profile under a request for mutual legal assistance in criminal matters
1.3.1 Articles 145 to 164 from Portuguese Law n. 144/99, August 31.
1.3.2. Treaty of Mutual Assistance in Criminal Matters, signed on May 7, 1991, in Brasilia. It entered into force regarding both countries on the 1st of December 1994.
Brazil – Law Decree n. 77, November 19, 1992 – Approved by the National Congress, the Decree of the President of the Republic n. 1320 of November 30, 1994 - Promulgates the Treaty of Mutual Assistance in Criminal Matters between the Government of the Federative Republic of Brazil and the Government of the Portuguese Republic of May 7, 1991.
Portugal – Resolution from the Parliament n. 4/94, of February the 3rd - Approves for ratification; President of the Republic’s Decree no. 2 / 94, February 3 - Ratifies the Treaty; notification no. 329/94, DR 272, Series I, 24-11-1994 - which makes the conclusion of the treaty ratification a public process.
In Brazil, since the Constitutional reform of December 2004 (EC 45/2004), the passive pleading letters are processed through the Supreme Court that, after giving the "exequatur ruling” that orders the feasibility, in Brazil, of legal diligences originated from abroad, forwards the requests to the Federal Justice for implementation.
In Brazil, however, both in civil and in criminal, the genetic material collection can not be done coercively, its implementation depending on the subject agreement, on behalf of the principle of "nemo tenetur se detegere", also known as the principle of non self-incrimination or principle of unclaimablity to produce evidence against oneself. It can be literally translated in the expression "nothing to fear because he is detained," meaning the right of the accused not to produce evidence against him/her self.
Although it is not possible to conduct this process coercively, Portugal’s request is not denied, being solely partially granted so that the accused is notified and, wishing to, provide the material or undergo the examination.

2. Jurisprudential framework

2.1. Portuguese jurisprudence on the collection of not consented saliva to determine DNA through mouth swab
Given the recent amendment of the Criminal Procedure Code, there are still no jurisprudential decisions published regarding this matter.

2.2. Brazilian jurisprudence on the collection of not consented saliva to determine DNA through mouth swab.
Decision of the JSC on the Pleading Letter 1.056/DE, on a request for collection of blood, originated from Germany.
3. Form requirements (Under article 5 of the Treaty of Mutual Assistance in Criminal Matters, the request for aid must be signed by the competent authority and include the following):
3.1. Identification of both petitioner and petitioned judicial authorities
On the petitioner judicional authority identification, the magistrate, holder of the process, must be identified, as well as his/her telephone and email.

3.2. Identification of the person who will be subject to examination
Name, nationality, address, if known, of the addressee or of the notified, in case of judicial decisions’ delivery or any other documents, or in case of notifications.

3.3. Mention that the diligence is duly ordered by the competent Portuguese authority

3.4. Brief enunciation of the facts that justify the wording of the request (indicating date and place where occurred).

3.5. Indication of the criminal-legal qualification of the facts, sending a copy of the incriminatory penal law.

3.6. Preparation of the application in a clear and understandable way.

3.7. Possibility to indicate urgency and confidentiality of the request and its contents

3.8. Dispacht a statement certifying that the requested examination is allowed in the face of Portuguese Law.

3.9. Reference to the defender’s presence
The possibility of the accused to select and be assisted by a defender should be mentioned1.

3.10. Reference to the Treaty of Mutual Assistance in Criminal Matters
Brazil - Legislative Decree n. 77 of November 19, 1992; President of the Republic’s Decree n. 1320 of November 30, 1994;
Portugal - Resolution from the Parliament n. 4/94, February 3, President of the Republic’s Decree n. 2/94 of February 3 and notification n. 329/94, DR 272, Series I, of 24-11-1994).

4. Translation
The request is sent in Portuguese.

5. Transmission
The request’s transmission must be done through the Attorney General's Office (direct transmission to the Attorney General's Office by first instance magistrates, without going through the hierarchical levels).
Under article 14 of the Treaty, each party nominates a Central Authority to send and receive requests and other communications that relate to mutual assistance under this treaty.
In Portugal, the Central Authority is the Attorney General's Office.
In Brazil the Central Authority is the Attorney General's Office.

6. Expenses (under article 16 of the Treaty of Mutual Assistance in Criminal Matters):
The petitioned Party (Brazil) shall bear all the costs involved in complying with the aid request, except the following, which should be left to the petitioner Party (Portugal):

    a) Compensation fees and expenses for the persons’ transportation under article 8 and expenses related to the detained persons’ transportation under article 9;
    b) Subsidies and expenses resulting from the transportion of prison officials or the escort, and
    c) Extraordinary expenses incurred in meeting the request when this is solicited by the petitioner Party.

7. Custody Prison
The procedure advised by the National Institute of Legal Medicine (INML), regardless of where the process runs, foresees the transport by hand by an accredited person or by diplomatic means. This is the mechanism that allows the INML to ensure the continuity of the custody prison.
However, the INML still performs the exam if the samples are sent by sealed or non sealed mail, provided it is legally required.
Only when transportation has occurred by accredited person’s hand or by diplomatic means, with the transportation document duly completed (indicating who reaped - date - hours - signature, who carried - date - hours - signature, and who delivered -- date - hours – signature), is the custody prison duly ensured, according to the INML.
The collection should be conducted on a reliable place that ensures, therefore, that the sample sent belongs to the identified person.
Usually the medico-legal or criminal police services of other countries offer such guarantee, because of the compliance of safety standards that forsee the interveners’ careful registration.
In other cases (as, for instance, cases of biological relationship research for reunion of family members in processes of immigration) the Portuguese Consulates in other countries have instructions to conduct collection of biological material through mouth swabs.
In very exceptional cases and under reservations, some samples collected at health services are received, which is not ideal because the safety standards for identification of forensic services are not usually followed, and the care sums up to the concerns of clinical character.
The INML always describes, in the expert report, the conditions under which the samples were received so that the magistrate can properly value the custody prison of the sample and, even if he/she sees fit, completely depreciate the result.

Spain
Request for an exam to determine the DNA profile under a request for mutual legal assistance in criminal matters issued by Portugal and addressed to Spain

1. Legal framework

1.1. The exam for determination of the DNA profile in Portuguese law
Reference to Portuguese law does not vary according to the country.

1.2. The exam for determination of the DNA profile under the Spanish law
In accordance with articles 326 § 3 and 363 § 2 of the Ley de Enjuiciamiento Criminal, as last amended by the Ley Orgánica 15/2003, of November, the 25th, where there are biological traces which could contribute to the clarification of the facts under investigation, the examining judge adopts or orders the police or the forensic expert to take the necessary measures to ensure that the collection, custody and the examination of such samples are carried out in conditions which ensure their authenticity.
In situations where it is necessary to collect the subject’s biological material, crucial for determining his DNA profile, the examining judge orders such collection, by justified dispatch.
He/she may determine the practice of acts of inspection, recognition or appropriate body intervention according to the principles of proportionality and reasonableness.
The new wording of Article 326 and 363 of the Ley de Enjuiciamiento Criminal was intended, essentially, to permit the taking of DNA samples from biological evidence obtained from the crime scene or extracted from suspects, so that these DNA profiles can be incorporated into a database for later use in a specific investigation.
The Ley Orgánica 10/2007, dated 8 October, regulated the police’s database on samples obtained from DNA.
The right not to declare or confess guilt derives from article 24 of the Spanish Constitution; however, this provision is not affected by the fact of requesting or compeling the suspect to surrender a body sample for DNA analysis2.

1.3. Legislation of national and international origin on the request for examination to determine the DNA profile under a request for mutual legal assistance in criminal matters

1.3.1. European Convention on Mutual Assistance in Criminal Matters of April 20, 19593.
Under paragraph 1 of article 1, the Contracting Parties undertake to give each other the widest possible mutual assistance in cases relating to offences whose restraint is of the responsibility of judicial authorities of the petitioner party.
As such, the petitioned Party shall meet, by the way prescribed in its legislation, any pleading letter, regarding a penal process, addressed by the judicial authorities of the petitioner party that request the realisation of instruction acts or the transmission of evidence (article 3 § 1).
Regarding the information that the aid request must contain, have in mind article 14.
Under the provisions of article 24, Portugal stated that for the purposes of the Convention, the Public Prosecutor should be considered as the judicial authority.
Spain, in turn, indicated the following judicial authorities, for the purposes of the Convention:

    · Common judges and courts;
    · The public prosecutors;
    · Military judicial authorities.

1.3.2. Articles 4 to 6 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, signed in May 29, 2000 by Member States, under the Portuguese Presidency4.
1.3.3. Agreement signed between the Portuguese Republic and the Kingdom of Spain in November 19, 1997 on Judicial Cooperation in Criminal and Civil Matters.5
1.3.4. List of Portuguese border courts: Listing n. 73/20006.
1.3.5. Articles 21 n. 4, 145 to 164 of Law n. 144/99, August, 31.
In the European Union, exception made for the United Kingdom and Ireland, requests for judicial assistance may be made, directly, between judicial authorities and returned the same way. In the case of Spain, having agreed to waive translation, requests should be made directly, according to the Circular letter 4/2002, from PGR (Attorney’s General Officce).

2. Jurisprudential framework

2.1. Portuguese jurisprudence on the collection of not consented saliva to determine DNA through mouth swab.
Reference to Portuguese law does not vary according to the country.

2.2. Spanish jurisprudence on the collection of not consented saliva to determine DNA through mouth swab.
Sentence n. 501/2005. Appeal n. 774/2004 of April, 19th, 2005 that decided the acquittal, on the account of not having observed the legally required guarantees regarding the collection of biological samples for expertise test, essential to condemn the accused. The proof was therefore considered illegal and inadequate.

3. Form requirements

3.1. Identification of both petitioner and petitioned judicial authorities.

3.2. Identification of the person who will be subject to examination

3.3. Mention that the diligence is duly ordered by the competent Portuguese authority.

3.4. Brief enunciation of the facts that justify the wording of the request (indicating date and place where occurred).

3.5. Indication of the criminal-legal qualification of the facts, sending a copy of the incriminatory penal law.

3.6. Preparation of the application in a clear and understandable way.

3.7. Possibility to indicate urgency and confidentiality of the request and its contents.

3.8. Dispatch a statement certifying that the requested examination is allowed in the face of Portuguese law.

3.9. Reference to the defender’s presence
Reference to the defender’s presence does not vary according to the country.

3.10. Invoke the Treaty celebrated between the Portuguese Republic and the Kingdom of Spain, November 19, 1997, regarding the Judicial Cooperation in Criminal and Civil Matters7.
When necessary, mention the list of border Portuguese courts. List n. 73/20008.

3.11. Inform, with a copy, the Attorney General's Office, for statistical purposes (this information should not be included in the application)

4. Translation
There is no need to translate the request; it can be sent in Portuguese9.

5. Transmission
The transmission of the application should be direct to the Juzgados de Instrucción.
Should it be proven impossible to transmit it directly, the request should be transmitted through the Attorney General's Office (direct transmission to the Attorney General's Office, without going through the hierarchical levels)

6. Expenses
Portuguese Law considers, as a rule, that the execution of the cooperation request is free of charge with the exception of the circumstances indicated in article 26 of Law 144/99.
However, if in addition to the DNA harvest, an expertise test is also required; it is likely that the petitioned State considers it as a relevant expense depending on the technologies involved and therefore charge the Portuguese state (article 9 of the 1959 Convention).

7. Custody Prison
The procedure suggested by the INML does not vary according to the country.

France
Request for an exam to determine the DNA profile under a request for mutual legal assistance in criminal matters issued by Portugal and addressed to France

1. Legal framework

1.1. The exam for determination of the DNA profile under the Portuguese law.
Reference to Portuguese law does not vary according to country.

1.2. The exam for determination of the DNA profile under the French law
The Civil Code stipulates in its art 16-1 that everyone has the right to inviolability of the human body; this principle can only be overturned by law.
The French legislator distinguishes, however, the use of genetic data under civil law and under criminal law, stipulating that under the latter it is required the prior express consent of the subject before the collection of the sample (art 16-11 of the Civil Code). At a criminal law level the only demand formulated is that it should be accomplished within the scope of an investigation or the initial proceedings related to a judicial process. The Public Prosecutor and the Examining Judge are competent to order the completion of these tests in accordance with articles 60, 77-1 and 156 of the Code de Procédure Pénale (hereinafter CPP).
Within the harvesting of biological samples, the Circulaire 10 Octobre 2000 favours the use of mouth swab, for it is easier to obtain (it does not require the intervention of a doctor), it is the best way to conserve the biological material and presents a very small volume, which makes it easier to transport (« kit de prélèvement biologique »).
The French judicial system has a « Fichier National Automatisé des Empreintes Génétiques » - Décret du 18 mai 2000 - which allows comparisons of genetic profiles, namely for the suspects’ identification of crimes listed in article 706-55 of the CPP.

1.3. Legislation of national and international origin on the request for examination to determine the DNA profile under a request for mutual legal assistance in criminal matters
1.3.1. European Convention on Mutual Assistance in Criminal Matters of April 20, 195910.
Under paragraph 1 of article 1, the Contracting Parties undertake to give each other the widest possible mutual assistance in cases relating to offences which restraint is of the responsibility of judicial authorities of the petitioner party.
As such, the petitioned Party shall meet, by the way prescribed in its legislation, any pleading letter, regarding a penal process, addressed by the judicial authorities of the petitioner party that requests the realisation of instruction acts or the transmission of evidence (article 3 § 1).
Regarding the information that the aid request must contain, have in mind article 14.
Under the provisions of article 24, Portugal stated that for the purposes of the Convention, the Public Prosecutor should be considered judicial authority.
The Republic of France, in turn, indicated the following judicial authorities, for the purposes of the Convention:
- The first presidents, adviser presidents and judges of repressive jurisdictions;
- Examining Judges;
- Members of the Public Prosecution Services, such as:

    - Attorneys General;
    - General Lawyers;
    - Substitutes of Attorneys General;
    - Prosecutors of the Republic and their substitutes;
    - Representatives of the prosecutor before the police courts;
    - Government Commissioners before the armed forces courts.

1.3.2. The Agreement by Exchange of Notes between the Republic of Portugal and the Republic of France on international criminal cooperation (September 14, 1955).
With this agreement, the translation of the pleading letters and judicial acts in criminal matters into the language of the petitioned authority was exempted; this is met by both countries11.
1.3.3. Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, signed in May 29, 2000 by Member States, under the Portuguese Presidency12
1.3.4. Articles no 21, n. 4, 145 to 164 Law n. 144/99, August 31.
In the European Union, exception made for the United Kingdom and Ireland, requests for judicial assistance may be made, directly, between judicial authorities and returned the same way. In the case of France, having agreed to waive translation (1.3.5.), requests should be made directly, according to the Circular letter 4/2002, from PGR (Attorney’s General Office).

2. Form requirements

2.1. Identification of both petitioner and petitioned judicial authorities.
On the petitioner judicial authority identification, the magistrate, holder of the process, must be identified, as well as his/her telephone and email.

2.2. Identification of the person who will be subject to examination

2.3. Mention that the diligence is duly ordered by the competent Portuguese authority.

2.4. Brief enunciation of the facts that justify the wording of the request (indicating date and place where occurred).

2.5. Indication of the criminal-legal qualification of the facts, sending a copy of the incriminatory penal law.

2.6. Preparation of the application in a clear and understandable way

2.7. Possibility to indicate urgency and confidentiality of the request and its contents

2.8. Dispatch a statement certifying that the requested examination is allowed in the face of Portuguese law

2.9. Reference to the defender’s presence.
Reference to the defender’s presence does not vary according to country.

2.10. Inform, with a copy, the Attorney General's Office, for statistical purposes (this information should not be included in the application)

3. Translation
It is not necessary to translate the application, thus it can be sent in Portuguese.

4. Transmission
The transmission of the application must be done directly to the Cour d'Appel.
Should it be proven impossible to transmit it directly, the request should be transmitted through the Attorney General's Office (direct transmission to the Attorney General's Office, without going through the hierarchical levels)

5. Expenses
Portuguese Law considers, as a rule, that the execution of the cooperation request is free of charge with the exception of the circumstances indicated in article 26 of Law 144/99.
However, if in addition to the DNA harvest, an expertise test is also required; it is likely that the petitioned State considers it as a relevant expense depending on the technologies involved and, therefore, charges the Portuguese State accordingly (article 9 of the 1959 Convention).

6. Custody Prison
The procedure suggested by the INML does not vary according to the country.

Switzerland
Request for an exam to determine the DNA profile under a request for mutual legal assistance in criminal matters issued by Portugal and Adressed to Switzerland

1. Legal framework

1.1. The exam for determination of the DNA profile under the Portuguese law.
Reference to Portuguese law does not vary according to country.

1.2. The exam for determination of the DNA profile under Swiss law.
The Constitution de la Confédération Suisse of the 18th April 1999, taking into account the principle that human dignity must be respected and protected (article 7) and that every human being has the right to personal freedom, including physical integrity (article 10 § 2), article 36, in its number 1, prescribes that any restriction on a fundamental right must have a normative basis, and that it must be foreseen in the law, in the case of a serious restriction. In every case, this restriction should be justified on grounds of public interest or of protection of a fundamental right of another person (number 2) and be proportionate to the objective pursued (number 3), without ever forgetting that the essence of fundamental rights is inviolable (number 4).
The Loi fédérale sur la procédure pénale du 15 juin 1934
Article 29-bis § 1 states that the personal data can only be treated when it is necessary for the persecution or the prosecution of a crime.
Specifically on the completion of physical examinations, article 73-ter provides that, in case of need and having in mind the settlement of facts, they can be ordered by the judge (n. 1 § a)). However, they can also be ordered by the Attorney-General, in case of an investigation of the competence of the judicial police (n. 2), or by the judicial police itself if there is strong evidence and if the aim is to collect blood or urine (n. 5).
A person who is not suspect of having commited a crime can not be subject to examination without his own consent, unless the aim is to investigate an important fact or if it is not possible to verify this fact by any other means (n. 3).
The examination should be assigned to a doctor or other qualified person (n. 4).
It is important to focus that the accused is entitled, at all stages of the procedure, to be assisted by the defender (article 35 § 1).
Loi fédérale sur l’utilisation de profils d’ADN dans les procédures pénales et sur l’identification de personnes inconnues ou disparues, du 20 juin 2003.
This law establishes the conditions by which the DNA profiles can be used in criminal proceedings and taken into account for purposes of inclusion in a federal information system.
Article 1 allows comparison of DNA profiles in the context of judicial cooperation, to increase the efficiency of criminal proceedings, but only in order to achieve the following objectives:

    - The identification of suspects and the removal of suspicions falling on other people;
    - The rapid determination, through systematic analysis of biological material, of elements common to various offences, seeking out groups of criminals operating in an organised way, serial criminals and the recidivists;
    - The contribution to evidence management.

The DNA elements can not be used for purposes other than those stipulated in Federal Law (article 2, n. 3).
Suspects, victims and people who may have been to the place of the offence and whose traces have to be distinguished from the ones of the suspect may be subjected to DNA collection, namely through mouth swab (article 3).
It is also admitted the establishment of a DNA profile from a sample of a deceased person, provided there is evidence that suggests that this procedure will be useful in clarifying a crime (article 4).
The police, the authority of criminal prosecution and the court are entitled to order the non-invasive collection and DNA analysis of the persons referred to in articles 3º and 4º (article 7 § 1).
However, only the judiciary authorities can determine the invasive collection of DNA samples and the subsequent analysis (article 7, n. 3).
DNA analysis can only be carried out in laboratories designated by the Federal Department of Justice and Police (art. 8 §§ 1 and 2).
The destruction of DNA samples (article 9 § 1) and of DNA profiles established under the provisions of article 3 is foreseen (article 16).
And, although it may be subject, in certain cases, to the prior approval by the judicial authority to destroy the DNA profile, paragraph 2 of article 17 safeguards that the Federal Cabinet may refrain from requesting such permission in the case of foreign authority.
- Ordonnance sur l’utilisation de profils d’ADN dans les procédures pénales et sur l’identification de personnes inconnues ou disparues du 3 décembre 2004.
This Diploma foresees that the Federal Department of Justice and Police are competent for the procedures determination, technical means and methods to adopt in the collection of DNA samples (article 1).
The creation of a coordination service is also foreseen, which must, moreover, work with the federal cabinet in case of international applications (article 7º, paragraph 3, al. c)).
- Cantons Regulations
Cantons have the power to regulate the use of DNA profiles in criminal proceedings and for identification of unknown or missing persons.13

1.3. Legislation of national and international origin on the request for examination to determine the DNA profile under a request for mutual legal assistance in criminal matters

1.3.1. European Convention on Mutual Assistance in Criminal Matters of April 20, 1959.
Under paragraph 1 of article 1, as last amended by the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, the Contracting Parties undertake to grant each other, and as soon as possible, the widest possible mutual assistance in proceedings related to offences which restaint is of the responsibility of judicial authorities of the petitioner party.
As such, the petitioned Party shall meet, by the way prescribed in its legislation, any pleading letter, regarding a penal process, addressed by the judicial authorities of the petitioner party that requests the realisation of instruction acts or the transmission of evidence (article 3 § 1).
Regarding the information that the aid request must contain, have in mind article 14.
Requests for mutual legal assistance may be done by electronic means of communication or any other means of communication, provided that Portugal may at any time present a written record of transmission and the original document (article 15 as wording on the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters).
Under the provisions of article 24, Portugal stated that for the purposes of the Convention, the Public Prosecutor should be considered as a judicial authority.
Switzerland, in turn, indicated the following judicial authorities, for the purposes of the Convention:
- Courts;
- The Prosecutor-General of the Confederation;
- The federal examining judges;
- The Federal Office of Justice;
- The authorities empowered to conduct investigations, issue of warrants and making decisions in criminal proceedings14.
1.3.2. Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters of November 8th, 200115 16.
Its main aims were to make assistance requests more simple, faster and more flexible and to protect personal data.
When an application specifies a formality or a particular procedure imposed by the law of the petitioner party, even if the formality or procedure are not known to the petitioned Party, that Party will satisfy the request, unless it is contrary to the fundamental principle of its own law (article 8).
For protection of personal data transmitted from one party to another, as a result of the implementation of a request made under the Convention, article 26 provides that such data can only be used by the Party to which they were transmitted for the purpose of procedures to which the Convention applies, unless there is prior consent of either party that sent the data, whether the person concerned.
However, the petitioned party may request the petitioner party information on the use that has been made of the data obtained.
1.3.3. Articles 145 to 164 Law no 144/99, August 31st.

2. Form requirements

2.1. Identification of both petitioner and petitioned judicial authorities.

2.2. Identification of the person who will be subject to examination

2.3. Mention that the diligence is duly ordered by the competent Portuguese authority.

2.4. Brief enunciation of the facts that justify the wording of the request (indicating date and place where occurred).

2.5. Indication of the criminal-legal qualification of the facts, sending a copy of the incriminatory penal law.

2.6. Preparation of the application in a clear and understandable way

2.7. Possibility to indicate urgency and confidentiality of the request and its contents

2.8. Dispatch a statement certifying that the requested examination is allowed in the face of Portuguese law

2.9. Reference to the defender’s presence.
Reference to the defender’s presence does not vary according to country.

3. Translation
The application may be translated to German17, French18 or Italian.19 20.
The petitioner court is responsible for the application’s translation.
In case of urgent need for translation, and if it is not possible to contract services to ensure it on time, the translation can be requested to the Attorney General's Office.
If possible, the language used in the application should consider the canton where, in the end, the court that, will carry out the request is settled.

4. Transmission
Requests for assistance may be done directly to the appropriate Swiss authorities21 but given the complexity of the Swiss judicial organisation, the application can be transmitted through the Attorney General's Office (direct transmission to the Attorney General's Office without going through the hierarchical levels).

5. Expenses
Portuguese Law considers, as a rule, that the execution of the cooperation request is free of charge with the exception of the circumstances indicated in article 26 of Law 144/99.
However, if in addition to the DNA harvest, an expertise test is also required; it is likely that the petitioned State considers it as a relevant expense depending on the technologies involved and, therefore, charges the Portuguese State accordingly (article 9 of the 1959 Convention).

6. Custody Prison
The procedure suggested by the INML does not vary according to the country.

Note 1 Article 32, n. 3, from the Portuguese Republic Constitution and article 61-1 §§ e) and f) of the Code of Criminal Procedure.

2 On this subject, you can also check Luzón Cuesta, JM " La investigación sobre el ADN y sus problemas. Toma de muestras" in Revista del Ministerio Fiscal 6, 1999.

3 Approved for ratification by the Resolution of the Parliament n. 39/94, of July 14th and ratified by the President of the Republic’s Decree n. 56/94, of the same date, entered into force in Portugal on December 26th, 1994. Regarding Spain it was signed in 24.07.79, ratified in 18.08.82, entering into force in Spain on the 16.11.82.

4 Approved for ratification by the Resolution of the Parliament n. 63/2001, 21/06 and being ratified by the President of the Republic’s Decree no. 53/2001 of 16/10.
Note 5 Decree 14/98 of May the 27th, published in the Official Journal I, of 27.05.98.
Note 6 Published in the Official Journal II of March the 3rd, 2000.
Note 7 Decree 14/98 of May 27, published in the Official Journal I, May 27, 1998.
Note 8 Published in the Official Journal II, of March the 3rd, 2000.
Note 9 Article 1 of the Treaty celebrated between the Portuguese Republic and the Kingdom of Spain, November 19, 1997, regarding Judicial Cooperation in Criminal and Civil Matters.

10 Approved for ratification by the Resolution of the Assembly of the Republic no. 39/94 of July 14, ratified by the President of the Republic by Decree no. 56/94, July 14 and entered into force in Portugal on 26, December 1994. Regarding France, it was signed in April 28, 1961, ratified on the 23rd May 1967 and entered into force from August 21 to March 10, 1967.

11 Nevertheless, as France made no reservation to article 16-2 of the 1959 Convention, this country has tacitily decided to accept, afterwards, international MLA requests in any language from other Contracting Party including, as such, the Portuguese. In the meantime, Portuguese declaration to the same article has included the French as an acceptable language to these requests (§ b) of article 1 of the President’s Decree 56/94 of the14th of July).

12 Approved for ratification by the Resolution of the Assembly of the Republic n. 63/2001, 21/06 and ratified by the President of the Republic by Decree no. 53/2001 of 16/10. It entered into force in the legal order of the French Republic in May 10, 2005.

13

14
A detailed list of the Swiss judicial authorities may be found at the following web site: http://www.rhf.admin.ch/etc/medialib/data/rhf.Par.0003.File.tmp/direktverkehr-f.pdf.

15
The First Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters of March 17th 1978 was approved for ratification by the Resolution of the Assembly of the Republic n. 49/94 of August the 12th and ratified by the President’s Decree n. 64/94 of the same date and it entered into force in Portugal on the 27 of April 1995. Regarding Switzerland, it was signed on the 17 of November 1981, but has not yet been ratified. Therefore, the above notes should be read accordingly.

16
Approved for ratification by the Resolution of the Assembly of the Republic n. 18/2006, of 9 of March, ratified by the President of the Republic by Decree n. 17/2006 of the same date and has entered into force in Portugal on the 1st of March 2007. It was signed by the Government of the Swiss Confederation in 15.02.02, ratified in 4.10.04 and entered into force in Switzerland in 1.02.05

17
In the cantons of Outer Appenzell; Inner Appenzell; Argovia; Basle-Field; Basle-City; Glarus, Lucerne; Nidwald; Obwald; St. Gall; Schaffhausen, Schwyz, Solothurn; Thurgovia; Uri, Zug, Zurich.

18
In the cantons of Geneva, Jura, Neuchatel; Vaud

19
In the canton of Tessino.

20
German or French, in the cantons of Berne, Fribourg and Valais, and German or Italian, in the canton of Grisons.

21
For further details, consult the web site http://www.elorge.admin.ch (select "banque de donnés des localités et tribunaux suisse"; "recherche de moyens de preuve" and "international: demandes de recherches de moyens de preuve en matiére pénale").