Perfis genéticos para fins de persecução criminal: uma análise à luz da constituição e da bioética

Abstract

It seeks to analyze, through a bioethical approach, whether the collection, storage and use of genetic profiles by the State for the purpose of criminal prosecution is in line with the fundamental rights and guarantees established by the Brazilian legal system. The method used in the analysis corresponds to the hypothetical-deductive one, being used as research technique the indirect documentation through documentary and bibliographic research. Firstly, the creation and use of genetic profiling banks at the international level, as well as the Brazilian legislative innovations, in particular Law no. 12,654 / 2012, were analyzed. Next, the fundamental rights and guarantees related to genetic criminal investigation and identification were highlighted, emphasizing the right not to produce evidence against oneself and the assessment of genetic evidence in criminal proceedings. Finally, an analysis was made in light of the bioethics of the conflict between individual and collective interests related to the use of genetic profiles by the State. For this, the importance of transdisciplinarity and the transition from a bioethics of principles to an intervention bioethics were highlighted. Considering the low levels of elucidation of crimes in Brazil and the interest in effective criminal prosecution aimed at reducing crime, it is possible, under the approach of a bioethics enlarged to the collective sphere, to justify the decision making that privileges collective interests, even to the detriment of individual situations. However, in view of international recommendations on the use of human genetic information, exceptions to the consent of the individual should only be made in accordance with the ethical and legal standards adopted by States and should be consistent with the principles and provisions enunciated. used as a paradigm for the practice of arbitrariness and injustice. Thus, it was concluded that Law No. 12,654 / 2012 did not satisfactorily dispose of criminal identification by means of the genetic profile, given the use of vague and imprecise terms that are not sufficient to limit the exercise of the right not to make evidence against yourself.