Molecular genetic testing
Molecular Genetic Testing
Molecular genetic testing pursuant to
The criminal police may independently investigate traces found at the crime scene, while the investigation of personal samples generally requires judicial authorization. The investigation is carried out by anonymized experts from forensic medicine or molecular biology.
Molecular genetic testing is used to identify individuals through DNA analysis.
Scope of Application
Molecular genetic testing is applied:
- to assign biological traces to a person,
- for identity verification,
- to clarify descent
A distinction is made between two categories:
- Biological traces: Blood, saliva, or hair of unknown origin that may be relevant to the crime
- Personal material: Hairs, brushes, or items of clothing that are assigned to a specific person
Biological traces from the crime scene may be examined independently by the criminal police using molecular genetics. A judicial authorization is not required for this, as the necessary connection to the crime already exists and the investigation directly serves to solve the criminal offense.
In contrast, the analysis of material that is or could be assigned to a specific person may only take place upon order of the public prosecutor’s office and with judicial authorization.
Peter HarlanderHarlander & Partner Rechtsanwälte „Die molekulargenetische Untersuchung ist ein mächtiges Werkzeug der Strafverfolgung, doch ihre Stärke liegt nur dann im Recht, wenn sie unter strikter Wahrung der Grundrechte eingesetzt wird.“
Requirements
Material Requirements
Investigating authorities conduct molecular genetic testing if it contributes to the investigation of a criminal offense, in particular to determine the identity of a person or to clarify descent relationships.
Formal Requirements
- For traces from the crime scene: independent investigation by the criminal police
- For personal material: judicial authorization required
Implementation
An expert from forensic medicine or forensic biology carries out the molecular genetic testing. The examination material is handed over anonymously, and the Federal Criminal Police Office keeps the personal data separate from the samples.
Appointed institutes:
- Medical Universities of Vienna, Innsbruck, Salzburg
- DNA Laboratory Mödling
Results may only be included in the national DNA database if they come from these contractual partners. After completion of the investigation, samples that are no longer needed must be destroyed, provided that no further assignment is required.
Storage and Use of Results
The results may only be processed for the purpose of investigations. After the procedure has ended, the data must be deleted or destroyed.
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International Cooperation
Austria is connected to international data networks:
- Interpol DNA database (worldwide comparison)
- Prüm Association System (EU-wide networking)
A hit in international databases requires at least six matching genetic markers. The exchange of personal data is only permitted in the event of a confirmed hit and within the framework of legal assistance proceedings.
Legal Protection and Procedural Guarantees
Legal remedies:
- Against judicial authorizations: Appeal to the Higher Regional Court.
- Against orders of the public prosecutor’s office: Objection due to violation of rights.
Data protection control:
Due to the lack of command and coercive power, an appeal to the Administrative Court is not possible against measures taken by the criminal police, but a complaint to the Data Protection Authority is.
Prohibition of use:
Illegally obtained DNA evidence may not be used in criminal proceedings. Those affected can file a motion for non-use in the main hearing.
Your Benefits with Legal Assistance
Molecular genetic testing affects sensitive fundamental rights, as it particularly concerns the protection of personal data and the safeguarding of privacy. In addition, errors in the ordering, implementation, or evaluation can have serious legal consequences, such as the inadmissibility of evidence. Furthermore, an inadmissible DNA comparison can significantly impair confidence in criminal prosecution, both economically and personally.
Legal support from a law firm specializing in criminal and data protection law ensures that such investigations are carried out lawfully and that the rights of those affected are fully protected.
Sebastian RiedlmairHarlander & Partner Attorneys „Zwischen Aufklärungspflicht des Staates und Schutz der Privatsphäre des Beschuldigten besteht ein empfindliches Gleichgewicht. Die gerichtliche Bewilligungspflicht ist kein Formalismus, sondern ein zentraler Garant dieses Gleichgewichts.“
