DISCRIMINATORY DNA-ANALYSES IN BASEL
Following three rapes and one attempted rape committed by a man "with dark skin and of African origin", the Basel police are systematically screening non-suspect males in the city's black community, using random police checks and "voluntary" DNA analyses. Africa Foot, the only association of Africans in Basel, views the operation as unacceptable discrimination and has expressed fears that the information collected by the police - might be used for more than simply finding the rapist: it could be used to set up a "register of Africans".
More than 300 Africans have been stopped on the street, or visited by police at their homes or workplaces. Black males with residence in Basel or its suburbs receive a letter with a date for the blood test. Non-residents are checked on the spot.
On a Friday night in July, police surrounded a well-known cultural meeting place mainly frequented by Africans and South Americans during a "Tropical Night" disco. Those present were informed that all black men of an age and size fitting the police description of the rapist were to be checked and asked to submit to a blood test. A police officer explained that, thanks to the "genetic fingerprint" obtained by the test, it would be possible to convict the perpetrator if he was among the people present and, at the same time, free everyone else from suspicion.
Most of the persons present at the disco were too surprised to objecting to this, but some of them later contacted Africa Foot.
In a letter to its members, the association stressed that the blood tests were illegal. The tests are "unacceptable", as such a measure is justified only in presence of grave suspicion based on concrete facts. "The fact of being a coloured male is no sufficient reason for being suspected of being a rapist!"
Africa Foot also accused the Public Prosecutor's office of having carried out blood tests on men who did not fit the personal description of the rapist at all. As a consequence, the association wonders whether the genetic data collected under the pretext of investigating a particular criminal case might be used for setting up a police register of Africans. Indeed, the fact that the police are sending letters to persons they want to submit to the DNA test seems to indicate that Swiss communes already have registers which contain data on the race of their residents. There is no legal basis for such a practice.
Beat Voser, the Basel Public Prosecutor dealing with the case, however, claims that the blood tests are perfectly legal and that so far none of the persons tested has complained.
In his view, even compulsory blood tests are permitted by the penal prosecution code of the Canton of Basel City. Paragraph 63 of the code allows compulsory blood tests on persons showing a "strange behaviour" (e.g. persons under the influence of drugs or alcohol). Voser advocates DNA analyses as a way of enabling simple and speedy exoneration of a group of suspects.
The public prosecutor's view is strongly contested by lawyers. Paragraph 63 in no way provides a legal basis for random mass screening, but instead allows interference in the physical integrity of persons only in the presence of concrete and pressing suspicion of a crime. René Brigger, a Basel lawyer, insists that, just as with telephone tapping, a mere "general suspicion" based on, for example, membership of a political organisation or, as in this case, sex and race, do not suffice. He warns that, in general, there is a danger that the massive use of technical methods in criminal investigations will gradually blur the lines between the constitutional state and the control state.
Sources: Die Wochenzeitung, 29.7.94; Blick, 5.8.94.Comment
DNA tests and compact discs have things in common. Both technologies started to gain widespread currency at about the same time, and both were considered infallible.
Yet today we know that even a CD player can stick, just as the old pick-up needle could. Similarly, techniques for decrypting human DNA chains are not entirely reliable - despite advanced laboratories.
The Zurich-based professor, Walter Bär, who is working on the Basel blood-tests is president of ISFH, an international association for the study of blood groups. He is somewhat sceptical about the alleged "voluntariness" of the Basel tests: "You certainly know how `voluntary' things like this can be", Bär remarks. He was nonetheless ready to proceed with the analyses, on condition however, that the police "immediately and completely" erase the personal data obtained by the tests and that persons proved not guilty through the analyses must be definitively excluded from the list of suspects.
Bär calls the proceeding of the Basel police a "genetic search by screening". Until now, this technique of random screening has been used in very few cases: in 1987, in Leicestershire (Britain) on 5,511 men aged 16 to 34 who lived near the site of a crime; in 1988, in Buckinghamshire on approximately 4,000 men, and in 1989, in Münster (Northern Germany) on 92 men. The British DNA screening searches were based on the method developed by the inventor of DNA testing, Professor Alec Jeffreys. The German tests were carried out by Professor Bär's institute. In all cases sex offenders were searched for, and in all cases the perpetrator was finally caught. In the Münster case, however, an innocent man was first considered to be the perpetrator based on the result of a DNA analysis. At that time, German women's rights activists criticised the DNA hunt on the grounds that it did not contribute to improved safety for women but instead served as a pretext for the authorities to legitimise a dubious instrument of criminal investigation.
In the last analysis, with the help of modern techniques, criminal investigation authorities are developing a generalised system of control and search. In legal terms this amounts to an inversion of the burden of proof, as the Basel case demonstrates.
"The delivery of blood and saliva will be voluntary, but anybody who refuses will be asked for his reasons to do so", legal experts in the USA noted as early as 1988.
Gene analyses are already being carried out for preventive purposes. According to Bürgerrechte & Polizei , a special periodical on policing published in Berlin, in 1991, genetic data banks existed in London and 13 US states. Among them the State of Virginia topped the list with, then, 33,000 DNA samples and 2,000 new samples stored every month.
At first, DNA analysis was used exclusively in sexual offence cases, but the technique soon spread to other offenses. Meanwhile, in the State of Iowa, the genetic data of persons sentenced merely for minor offences can be stored for later use.
The EU Council of Ministers of Justice and Home Affairs (the former TREVI group) too has shown interest for the matter. Establishing DNA analysis in courtrooms seems to have become a major policy objective of strategists of policing in Europe too.
Beat Leuthardt
Contact: Beat Leuthardt, Postfach 1856, CH-4001 Basel, Tel: +41/61 2630003, Fax: +41/61 2630006.