Facts

The Federal Supreme Court ruled in the appeal proceedings 1B_285/2020 of 22 April 2021 on the lawfulness of DNA profiling and police registration of the appellant A., who had participated in the climate action days on 8 July 2019 in Basel in a peaceful sit-in protest in front of the UBS building. The public prosecutor’s office of the Canton of Basel-Stadt initiated criminal proceedings against A. on suspicion of coercion, breach of the peace, trespass, damage to property and obstruction of official duties. On 8 July 2019, it ordered police registration (fingerprints and non-invasive sampling) and the creation of a DNA profile. A. filed an appeal with the Appellationsgericht Basel-Stadt, which dismissed the appeal on 20 March 2020. A. then filed an appeal in criminal matters with the Federal Supreme Court, seeking the annulment of the contested measures and the destruction of the data already collected.

The facts of the case include the following key points

  • Participation in a peaceful demonstration: A. and other activists surrounded the UBS building in Basel, wrote slogans on the façade with charcoal, covered surveillance cameras and blocked entrances with wooden barricades and piles of charcoal. Despite a police request to leave the premises, A. and others did not do so and were subsequently carried away and provisionally detained.
  • Ordering of coercive measures: On 8 July 2019, the public prosecutor’s office issued an order for police registration and DNA profiling. The lower court confirmed these measures on the grounds that A. belonged to the “recalcitrant core” of the demonstrators.
  • Legal basis and proportionality: A. argued the disproportionality of the measures, in particular with regard to participation in a peaceful assembly and the associated interference with the right to informational self-determination (Art. 13 para. 2 Cst., Art. 8 ECHR) and the freedom of assembly and freedom of expression (Art. 22 Cst., Art. 16 Cst.).

Considerations

1. Legal bases and conditions for intervention The Federal Supreme Court confirmed that the creation of a DNA profile and police registration under Art. 255 para. 1 lit. a and Art. 260 CrimPC are generally permissible if there is sufficient suspicion and the measures are suitable for investigating criminal offences or preventing future offences. However, the Court emphasised that such measures may not be ordered routinely and are subject to strict proportionality review. The legal basis for creating a DNA profile with a view to future offences was recognised, but only if there are significant and concrete indications of further criminal conduct by the accused.

2. Criticism of previous case law The Federal Supreme Court referred to criticism in legal scholarship and by the ECtHR of the previous assumption that the creation of a DNA profile constitutes only a minor interference with the right to informational self-determination. The criticism relates in particular to the expanded possibilities for using DNA profiles (e.g. phenotyping) and the risk of misuse. The Court left open whether it would maintain its previous case law, as in the present case the legal basis for the measures was given.

3. Lack of suitability of the measures for investigating the underlying offence: The Federal Supreme Court found that neither DNA profiling nor police registration were suitable for investigating the underlying offence. The presence of the appellant was beyond doubt due to his arrest “in flagrante delicto”, and there was no indication that DNA traces or fingerprints had been secured on damaged objects. The measures were thus not necessary to clarify the facts.

4. Disproportionality with regard to future offences The Court examined whether the measures would be proportionate with regard to possible future criminal offences by the appellant. The following points were considered:

  • Gravity of the alleged offences: The offences alleged against the appellant (breach of the peace, coercion, damage to property) were classified as misdemeanours or felonies, but in the specific context were not considered serious enough to justify a severe interference with fundamental rights.…