Legitimacy of Investigative Forensic Genetic Genealogy Under Art. 8 ECHR

Abstract

Investigative forensic genetic genealogy (iFGG) was successfully used in the United States to solve the Golden State Killer case in 2018 and in Sweden to solve the Linköping double-murder case in 2020. However, further use of iFGG in Sweden is temporarily suspended due to concerns about its legitimacy. This article evaluates the legitimacy of iFGG within the Council of Europe (CoE) following the European Court of Human Rights’ (ECtHR) four-fold privacy test: the preliminary interference test, the lawfulness test, the legitimate aim test, and the proportionality test. The use of iFGG is an interference with an individual’s right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR). Its lawfulness requires the creation of an iFGG enabling law or a CoE Recommendation. Its legitimate aim—criminal identification through DNA data deposited at crime scenes—falls squarely under Article 8 § 2 ECHR. The proportionality of its use largely depends on the provision of appropriate safeguards in an iFGG enabling law that would protect genetic data privacy. Although iFGG is a powerful tool to help solve cold cases, it has to stand on a solid legal foundation in order to withstand a possible challenge before the ECtHR in the future. The safeguards identified in this article, if incorporated in an iFGG enabling law, hope to prevent such legal challenge.

Keywords: Investigative forensic genetic genealogy (iFGG)European Convention on Human Rights (ECHR)European Court of Human Rights (ECtHR)ECtHR four-fold privacy testGenetic and genometric data privacyForensicsDNA