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 was temporarily suspended due to concerns about its legitimacy. This article 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. 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 amendment of an existing law to allow iFGG use by law enforcement. Its legitimate aim—criminal identification through data derived from DNA 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 ground that allows its use while respecting the right to privacy. It should be able to withstand any legal 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.