Legitimacy of investigative forensic genetic genealogy (iFGG) within the Art. 8 ECHR regime

Abstract

Investigative forensic genetic genealogy (iFGG) is a relatively new technique that combines genetic and traditional genealogy to generate suspect leads in a criminal investigation. It holds great promise in solving cold cases. However, the legitimacy of iFGG use within Article 8 of the European Convention on Human Rights (ECHR)—the right to respect for private life—has not been previously studied. This thesis evaluates the legitimacy of iFGG within what we name, 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. It discovers appropriate safeguards on each test that keep iFGG use within the bounds of Article 8 ECHR, among which include: creating a Council of Europe Recommendation that would serve as a legal template to harmonize iFGG-enabling domestic laws, limiting its use to specified violent crimes, obtaining prior judicial approval, prohibiting the use of DNA evidence generated as sole evidence for conviction, and under present circumstances, using it only as a method of last resort. These safeguards help ensure a continued high level of protection of human rights while law enforcement takes advantage of iFGG’s power to solve crimes. They also allow iFGG use by law enforcement to stand on a solid legal ground in order to withstand legal challenges before the ECtHR in the future. The safeguards identified in this thesis, if incorporated in an iFGG-enabling law, hope to prevent such challenges.