ملخص رسالة الدكتوراة حول
" القانون الجنائى واستخدامات التكنولوجيا الحيوية "
" دراسة مقارنة "
تاريخ المناقشة 29/3/2009م
محمد لطفي عبد الفتاح
Central Library Dissertation
College : Faculty of Law
Department : Criminal Law
Call No :
Researcher : Mohammed Lotfi Abd El Fattah Moustafa
Degree : PhD
Title : Criminal Law and Uses of Biotechnology – A comparative Study
The title of this study is "Criminal Law and Uses of Biotechnology" a Comparative study. It sheds light on some of the important sides related to the uses of Biotechnology and its relation to Criminal Law where the introductory chapter addresses the theoretical framework of the uses of Biotechnology, what Biotechnology is, the concepts which comes under it, shedding light on the human genome project and demonstrating its importance, defining the genetic engineering and its uses.
Part One addresses DNA finger print as one of the branches of Biotechnology and its role in the criminal proof where DNA fingerprint was used as an evidence for identifying the persons in many criminal cases in addition to demonstrating the direction of the comparative legislations as to taking this technique concerning the criminal proof and as pairing to establish a national register of the individuals' DNA fingerprint in addition to role in the stage of criminal investigation and demonstrating how convinced the judge is as to accepting it.
In the second part, the study addresses cloning as one of the uses of Biotechnology where it demonstrates what cloning is and shedding light on the different directions which prohibit or permit whether from an international or religious perspective in addition to demonstrating the criminal liability for cloning operations in the comparative legislations and demonstrating the liability of the artificial person criminally by considering it as a basis for the cloning operations.
Moreover, Part three demonstrates the criminal protection of the genetic privacy in the light of the uses of Biotechnology, shedding light on the legal principles connected with the protection of the human body within the scope of Biotechnology, demonstrating the international and legislative efforts in the comparative legislations, legal texts and supplementary texts in the French Law and showing the protection of the human body in the Egyptian legislation .
This is shown by the following lay out :
Introductory chapter : Theoretical Framework of the uses of Biotechnology.
Part One : DNA Finger print as one of the Branches of Biotechnology and its role in Criminal Proof.
Part Two : Cloning as one of the uses of Biotechnology.
Part Three : Legal Fence for Protecting Genetic Privacy in the light of the uses of Biotechnology.
Key word :
Biotechnology, DNA Finger print, Criminal Evidence, Human Genome Project, Genetic. Engineering, Criminal Proof, Cloning, Genetic Privacy.
The subject matter of this paper is " Criminal Law and Uses of Biotechnology". Here, we wonder about the reason for choosing such subject matter for the research??
The few past years uncovered a great scientific development whose range exceeds many past centuries that is Biotechnology and its diverse uses. Moreover, Biotechnology has resulted in many issues in the field of biological medicine specially in the field of genetics and genetic engineering. This has led to great problems which cause a lot of legal and religious controversy.
One of the most interesting and exciting discoveries is the molecule of DNA and its structure where the examined and probable results in the field of biotechnology and the intervention in the human genes at all its levels have led the law professionals and religion professionals to hurry up on equal footing to face these changes for making rules which the researchers must observe in this field not to leave the experimentation and scientific research in the hands of scientists and the specialists only.
Also, the choice of this subject matter was because of the desire to be connected with the reality of the society and to foresee its horizons in an attempt to lay down visions which could guide the legislator when regulating this topic with the assistance of the role of international organizations, bodies and the comparative legislations in addition to the criteria which limit the uses of Biotechnology.
Moreover, the problems and complexities of all scientific, religious, moral, legal and legislative angles have shown up starting with the intervention in the genetic map of man and the remaining organisms reaching the greatest problem that is " human cloning".
Also, the uses of Biotechnology have been so many specially in the field of genetic engineering. So, there must be a benefit resulting from the scientific results of this technique as to the theory of proof specially in the field of criminal proof. Nevertheless, the Egyptian legislator still ignores these phenomena and he doesn't pay attention to them seeing what criteria and provisions imposed by the general rules as sufficient.
Despite the importance and the benefits of biotechnological researches for man, they aren't free from violation and infringement on man's privacy. Consequently, there must be a balance as to all these considerations.
This study accentuates many important points where Part One shows DNA finger print as one of the branches of Biotechnology and its role in the criminal proof.
In addition, Part Two shows cloning as one of the uses of Biotechnology and how licit it is. Moreover, Part Three addresses the legal fence for protecting the genetic privacy in the light of the uses of Biotechnology is.
We have taken the tripartite division to treat the problems of this subject matter and this division is preceded by an introductory chapter in which the theoretical framework of the uses of Biotechnology.
This topic has required to show in Part One the role of DNA finger print in the criminal proof owing to the vital and effective role in this field. In this part we demonstrated the techniques and criteria necessary for working with DNA fingerprint. Also, the study demonstrates the importance by which DNA finger print is distinguished from those in the other examinations taking into account the importance of the existence of scientific, religious and administrative criteria for working with DNA fingerprint.
Owing to the evolution of the techniques of committing the crime, we addressed the criminal proof and DNA fingerprint in law and Islamic Law. Nevertheless, the legislative texts specially the procedural ones in the Arab Countries remained without any development which led to the inability of applicable laws to know of these techniques. And because of the judge's freedom as to his persuasion and the necessity of having the whole freedom as to having this persuasion from any evidence of which he is satisfied in the action in addition to what's mentioned in Article 302 of the Egyptian criminal procedures law, we showed the principle of the criminal judge's freedom as to forming his belief in addition to showing how admissible the scientific evidences are in the field of criminal proof demonstrating the types of criminal evidences whether direct or indirect, physical or oral and technical evidences in addition to presumptions and indications.
The study addresses also DNA finger print and its role in the stage of the preliminary investigation and the justifications for relying upon the results of DNA finger print in the religious field. In addition, it shows that there is an important field for benefiting from DNA finger print as to identifying the person.
Moreover, the study demonstrates the attitude of the other European legislations as to the use of DNA finger print and the attitude of the council of Europe as to the use of DNA for the criminal proof in addition to showing some applications of DNA finger print as to the criminal proof.
Then it is followed by Part Two in which we have treated to topic of cloning as one of the uses of Biotechnology where we demonstrate what cloning is and the concepts and beginnings which led to cloning in addition to the types of cloning, the attitudes for and against the technique of human cloning, its disadvantages and advantages. Moreover, cloning wasn't away from being treated from a religious and international perspective whether on the part of the church or some organizations and countries or on the part of Islamic doctrine where it is clear that the majority of Islamic doctrine support cloning the organs because of its public and private interest for humanity.
Furthermore, the study has shown the criminal liability for the cloning processes and shed light on the attitude of the legal systems as to cloning where it showed the difference of the attitudes of the various legislations some of which prohibit cloning absolutely and the others permit the cloning of the human foetus for the medical purposes where England has legalized the human cloning. Also, it has shown the attitude at the European level through the protocol of the council of Europe which provides for the prohibition of cloning.
But the attitude in France was much more clearer when the law issued in 1994 addressed this technique and Article 25 of the law No 800 issued on 6th of August 2004 which has added another paragraph to Article 16\4 of the French Civil Code where this Article has prohibited any intervention which aims at giving birth to a baby who is genetically identical to another person whether he is alive or dead. Also, it showed the difference of punishments provided for in the French law in this regard. Also, the study reveals the attitude of the Egyptian law as to cloning and the existence of a legislative vacuum which needs the Egyptian legislator's intervention in order for the legislation to harmonize with the variables happening in these sides of the various techniques because the nontherapeutic experiments are considered by some people to be licit under Article of 43 of the Egyptian constitution.
Furthermore, the study shows the criminal liability of the artificial person for cloning processes and the necessity of treating this issue in the Egyptian legislation in a clearer and more elaborate way. This is because the Egyptian law seemed to be completely free from any texts which treat this technique. There is a hope as to the Egyptian legislator's intervention through clear texts like the French legislator's text in Article 511\28 of the French new penal Code.
We ended the study with Part Three in which we addressed the legal fence for protecting the genetic privacy and shed light on the legal principles related to protecting the human body. In addition, we demonstrated the difference of the genetic privacy from the private life. Then we addressed through the study the international and legislative efforts for protecting the genetic privacy and demonstrated how some legislations such as the American and French laws provided for the protection connected with different sides of the right to the genetic privacy.
Also, the study showed the importance of the genetic information in the fields of insurance and work and we addressed the topic of consent and the enlightened agreement of the patient when genetically examined. In addition, Chapter Two of Part Three addressed the criminal liability for the uses of Biotechnology through showing the legal texts which treat the uses of Biotechnology, the crimes harmful to mankind and the crimes of assault as to the human body and its parts. Then we showed the supplementary texts as to the protection of the human body which were mentioned in the French Civil Code and the French public health law. It became clear through the study that the texts of the French legislation on the ethics of medicine in France in 1994 were disjointed and not clear and there were some scientific terms addressed by the legislator without giving them a specified definition.
Moreover, the study addressed the protection of the human body in the Egyptian legislation and shed light on the consent of the victim in the light of the uses of Biotechnology as for the criteria of consent. In addition, we treated consent in the French legislation and the patient's right to enlightenment and we showed consent in the Egyptian law in addition to how permissible to force the accused to take a sample from him with the recommendation that it is necessary for the various legislations to treat this part and to allocate special procedural texts in which there is a regulation for obtaining the genetic samples.
In conclusion, we came up with a number of recommendations some of which are as follows :
First : The inevitability of holding many conferences which address the topic of Biotechnology like the tenth annual conference of the Faculty of Law – Mansoura University which was entitled " The legal, Economic, Religious Sides of the Uses of the Genetic Engineering techniques". Which was held within the period from 2 to 3 of April 2006 in Cairo.
Second: The analysis of DNA must be done in the competent and official laboratories belonging to the state in addition to making sure of the safety of the samples away from any contamination and mingling with the other samples in addition to not substituting the samples not to raise doubts about the accuracy of results. This is in addition to that the sample is free from every suspicion such as the suspicion of being relatives or the friendship between the examiner and the examined person, the suspicion that the action is based on fancy and imagination. Furthermore, the persons undertaking the analyses to DNA fingerprint must be scientifically and morally trusted and each of them mustn't be a relative or friend or an enemy or beneficiary with one of the litigants and each of them mustn't be sentenced in relation to honour or honesty. That is because those challenges as to DNA fingerprint might induce the judge in most cases to be unsatisfied of it.
Third : The court may order the DNA fingerprint of the accused to discover the truth when charging him with a crime punishable by detention as taken by some legislations. Also, there must be safeguards related to DNA fingerprint the most important one of which is that the analysis is limited to identifying the person not uncovering the hereditary sides .
Fourth : We recommend the well preparation of the men of criminal evidences and the technical preparation of the laboratories of biological analysis in addition to the judge's supervision of all the stages of the laboratorial analyses of human cells and giving the chance to the concerned person to present the evidence for proving the contrary taking into consideration the respect for human rights as to the safety of his body where the medical laboratories in Lebanon for example whether private or official are free from the technological equipment which allow the examination of DNA that all the said examinations are done in the French and American Laboratories in return for high financial cost.
Fifth : The high technique may be used for cloning the human organs for any one who needs them. Thereupon, it is permissible to transfuse and transplant the cloned human organs. Nevertheless, the law on the transfusion and transplantation of human organs is still confined to the parliament and it is about to come to light soon. In addition, it is necessary to provide for the absolute prohibition concerning human cloning with all its forms away from the conjugal relationship whatever its forms, methods and motives are .
Sixth : The Egyptian legislator must intervene and criminalize the patterns of assault as to the safety of the body to modify the hereditary characteristics of man in a way that keeps the dignity of man for protecting the human genome of the person from any form of infringement, protecting the genetic code and keeping to its secrecy and the person's consent as to doing any genetic analysis in addition to laying down rules of law to carry out any genetic intervention and that must be for medical purposes or within the scope of valid criminal procedures.
Seventh : The Egyptian legislator and Arab legislations must allocate a part on the genetic infringements which take place with a person like what the French criminal legislator did where he cared noticeably about everything connected with the genetic analysis and the assault it could represent as to the body of man. So, he set a part in his last amendment in 1994 under the title " Assault on the person resulting from the genetic study to identify his personality through his DNA fingerprint".
Eighth : We hope that the Egyptian legislator and the other legislations of the Islamic states to speed up the criminalizing of manipulations as to genes to prevent the use of biotechnology to change the qualities of the foetus with the guidance of the German legislation which has provided for the punishment of whoever creates an artificial organism carrying the same genetic chromosomes carried by the foetus by imprisonment no more than one year or a fine. Also, the French legislator has prohibited any act which aims at changing the genetic characteristics of the new born and punished the person doing this by 20 years of hard Labour (Article 511 R). Furthermore, the Spanish legislator has prohibited the manipulations as to genes for a nontherapeutic purpose. (Article 2\2).
Nineth : The necessity of issuing a legislation which safeguards the criminal protection of the right to the genetic privacy and provides for specifying the criteria of permitting the infringement upon this right and the crimes connected with it.
Tenth : It is a must to amend the legislations which consider the technical evidence as an evidence connected with the judge's persuasion in particular as to DNA fingerprint. That is because what prevents the use of DNA finger print in the field of combating the crime is related to nonsubstantive matters in most cases. This is because the lack of its use is connected with the nonexistence of records for resorting to the crime in most Arab countries. Also, this lack is due to the attitude of a lot of the traditional investigators working in the field of criminal investigation who cannot keep abreast of the scientific latest developments in the field of combating the crime. Also, the legislations which still insist on taking the system of the technical evidences and the judicial persuasion together must be revised.
Eleventh : The legislator has to enact inevitably the rules of the criminal liability of the artificial persons and the rule of criminalizing and punishment imposed by this rule. In addition, the criminal liability must be dual which includes the punishment of the natural person who is the physical perpetrator of the crime and the artificial person and this is achieved by laying down the texts and rules required by the criminal protection taking into consideration the variables as to the nature of the artificial criminal personality, its activities, techniques, objectives and effects specially in the field of cloning.
Furthermore, we see that it in necessary to speed up the enactment of laws which facilitate working with the technique of DNA fingerprint in addition to setting the regulations for their application to avoid the faults of the criminal laboratories and to support the pros of using DNA fingerprint for combating crimes and chasing their perpetrator.
Finally : We call for the setting by the Egyptian legislator of express and clear legal texts in addition to avoiding what the French legislator did that is the disjointed laws in the penal code, public health law and the civil code and to avoid this reference used by the French legislator in the texts of the penal code by referring to the public health law. This is to become easier for the judiciary to apply the law in a way that achieves justice and fills the gaps in front of the manipulating persons to be able to benefit from the scientific progress.
Moreover, the legislator shouldn't choose the easy way and to be passive leaving matters to go in line with the persons with short term interests despite their long term damages and effects. But he must regulate the affairs connected with the uses of Biotechnology and control these uses in addition to specifying the permissible uses and the prohibited ones and those which must be done when necessary. All this is for the public good more than the private good in addition to protecting the human rights from the violation by those who are thirsty for rapid wealth or the widespread scientific fame.
In conclusion, the world has changed so rapidly and announced the third revolution that is "the revolution of the physics of solids" which resulted in the information revolution by using the computer and Internet. Then the world entered into "the biotechnological revolution" starting with the transfusion and transplantation of human organs then the artificial fertilization and genetic engineering ending in the human cloning which is considered as the last phase of the latest revolution in the whole world.
In case we don't believe what happened, how can we expect what will happen to us in the future or to move to be initiating future revolutions which make the world feel that we are still alive thinking.