Identificação criminal por perfil genético e instituição de bancos de dados dessa natureza: viabilidade constitucional e análise da Lei nº 12.654/12

Abstract

This work intends to study the constitutional aspects of criminal identification made through the use of genetic profiles, and the establishment, in Brazil, of a database containing this information. Study of this subject matter is relevant due to its relationship with collective interests relating to public security. Recently, the enactment of Law nº 12.654/12 allowed the collection and storage of genetic information for purposes of criminal identification by changing the Law nº 12.037/09 and the Criminal Enforcement Law (Lei de Execução Penal). Many lawyers and legal scholars argue that this technique is not viable nor constitutional, as it violates individual rights. Despite that position, a detailed examination of the issue reveals both the viability and the constitutionality of implementing this new identification technique and its respective database, as long as adequate provisions to preserve individual rights are considered and adopted by the new legislation. Although the ideology of Law nº 12.654/12 is adequate, changes on the language of the statue, or the creation of mechanisms to protect individual rights of suspects are still needed. In this work, initially the concept, requirements and the methods of criminal identifications are mentioned. Subsequently, the main legislative changes relating to the issue and its practical relevance are also addressed. A general analysis of Law nº 12.654/12 and the identification of its goals follows. Main characteristics on the use of this technique in other countries are also addressed. In order to confirm the absence of individual rights violations, the relationship between the Law nº 12.654/12 and some Constitutional, Criminal and Procedural rules is drawn, leading to the conclusion that, depending on how this new technique is introduced in our legal system, alleged violations can be successfully removed. Next, the possibility of using genetic information as evidence in criminal procedures is also addressed. In conclusion, directives needed to implement the new technique and its respective database are mentioned, being suggested its use even in civil identification procedures.