Facts
Parties and procedural history:
The complainant X. challenges the legality of the identifying measures, the taking of a DNA sample and the creation of a DNA profile ordered against her. The measures were ordered in connection with an act of criminal damage during an asylum symposium at the University of Bern on 30 January 2013. The Bern Cantonal Police recorded the personal details of X. and three other persons and initiated the recording of identifying features and the creation of a DNA profile. On 31 January 2013, the public prosecutor’s office confirmed the measures in writing, even though the University of Bern had informed the police on the same day that no criminal complaint had been filed in respect of the alleged criminal damage and that the tables had been cleaned without any damage. The public prosecutor’s office justified the measures on the grounds that one of the persons detained had attempted to disrupt an asylum conference ten days previously and that, given the refusal of the persons concerned to make statements, there was an increased likelihood of further offences being committed.
Legal remedies:
On 13 March 2013, X. was convicted by summary penalty order of defiling another’s property and fined 100 CHF. The public prosecutor’s office also ordered the deletion of the identifying data and the DNA profile once the penalty order had become final. X. filed an objection and requested a declaration that the measures were unlawful and compensation of 1 CHF. The Regional Court of Bern-Mittelland and the High Court of the Canton of Bern dismissed the objection and the appeal respectively and upheld the legality of the measures. X. then filed an appeal in criminal matters with the Federal Supreme Court.
Considerations
Sufficient grounds for suspicion as a prerequisite for coercive measures:
The Federal Supreme Court emphasises that coercive measures under Art. 197 para. 1 CrimPC may only be ordered if there are sufficient grounds for suspicion. Such grounds must be based on significant and concrete indications that render a criminal offence plausible. In the present case, such concrete indications were lacking. The mere refusal of the complainant and the other persons to make statements, as well as the attempt by another person ten days previously to disrupt a conference, are not sufficient to establish sufficient grounds for suspicion for ordering coercive measures. The lower courts should therefore have examined whether the prerequisites for the measures were actually met.
Competence to order the creation of DNA profiles:
The Federal Supreme Court clarifies that the creation of a DNA profile under Art. 255 para. 2 lit. a CrimPC may not be carried out routinely. While the police may order non-invasive sampling, the creation of the profile itself is the responsibility of the public prosecutor’s office or the court. A general instruction issued by the Attorney General to analyse DNA samples for the creation of a profile in all cases under Art. 255 para. 1 lit. a–c CrimPC is contrary to federal law. Such a practice removes the statutory differentiation between sampling and profile creation and effectively transfers the power to order the measure to the police, which is in breach of the law.
Urgency and proportionality of the recording of identifying features:
The recording of identifying features under Art. 260 CrimPC may only be ordered orally in urgent cases, but must subsequently be confirmed in writing. In the present case, there was no urgency. The identity and place of residence of the…