Facts
The Federal Supreme Court ruled in the appeal proceedings 1B_17/2019 of 24 April 2019 on the lawfulness of the order issued by the Zurich-Limmat Public Prosecutor’s Office to create a DNA profile from an existing buccal swab of appellant A. The appellant was accused of threatening, criminal damage, simple assault and possibly trespass after allegedly damaging the glass entrance door, a flowerpot and the gutter of a medical practice with a crowbar on 15 January 2018 and threatening the doctor and staff. The doctor suffered superficial cuts from glass splinters.
On 9 July 2018, the Zurich-Limmat Public Prosecutor’s Office ordered the creation of a DNA profile from the existing buccal swab of the appellant. A. filed an appeal against this order with the Higher Court of the Canton of Zurich, which was dismissed by decision of 15 November 2018. A. then filed an appeal in criminal matters with the Federal Supreme Court on 7 January 2019, seeking the annulment of the cantonal decision and the immediate deletion of the DNA profile already created.
Considerations
The Federal Supreme Court first confirmed its consistent case law, according to which Art. 255 para. 1 lit. a CrimPC provides a statutory basis for the creation of a DNA profile even with a view to possible future offences. The provision serves not only to clarify offences already committed, but also to identify perpetrators of unknown or future offences. This follows from a systematic interpretation in conjunction with Art. 259 CrimPC and Art. 1 para. 2 lit. a DNA Profile Act (LFADN), which emphasise the preventive effect of DNA profiles. The teleological interpretation outweighs the literal interpretation here, as it better serves the purpose of the norm – effective criminal prosecution and prevention. The opposing view, which calls for a narrower interpretation, was not considered convincing.
With regard to the proportionality of the measure, the Federal Supreme Court stated that the creation of a DNA profile for the prevention of future offences is only permissible under strict conditions. Substantial and concrete indications are required that the accused person could be involved in future offences of a certain severity. A sufficient suspicion of the offence in the sense of Art. 197 para. 1 CrimPC is required for the initial offence, but not for the future offences aimed at preventively. In the present case, the lower court had affirmed such indications for future criminal damage, which the Federal Supreme Court considered sufficient. However, the mere possibility of future offences is not sufficient; rather, concrete circumstances must exist that justify such a prognosis.
The Federal Supreme Court further emphasised that the measure is proportionate despite the interference with personal freedom (Art. 10 para. 2 Cst.) and the right to informational self-determination (Art. 13 para. 2 Cst.,…