Facts
The Public Prosecutor's Office of Basel-Landschaft conducted a criminal investigation against [X.] and [Y.] . The allegations against [X.] included disorderly management of business records, tax evasion, aiding and abetting breach of fiduciary duty, professional fraud, and forgery. [Y.] was accused of professional fraud, forgery, and breach of fiduciary duty.
On 26 September 2011, the Public Prosecutor's Office ordered the summons of [X.] and [Y.] for identification purposes and subsequent questioning. The Basel-Landschaft police carried out the summons on 27 September 2011 and took fingerprints and a DNA sample. The Public Prosecutor's Office then conducted the questioning.
[X.] and [Y.] filed a complaint with the Cantonal Court of Basel-Landschaft and requested a declaration that the summonses violated Art. 207 CrimPC. They demanded the destruction of the identification material and the DNA sample.
The Cantonal Court found that the summonses were unlawful and ordered the removal of the unlawfully obtained evidence from the case files. The Public Prosecutor's Office appealed and requested the reversal of the decision.
Considerations
The Federal Court examined the legality of the summonses and found that the lower court had not violated federal law by determining that the summonses were not necessary. The summonses were therefore issued in disregard of Art. 197 para. 1 lit. c CrimPC.
The Federal Court stated that police summons are permissible under the conditions listed in Art. 207 para. 1 CrimPC, but as a coercive measure can only be ordered if the purpose pursued cannot be achieved by milder measures. In this case, a summons as a milder measure would have allowed the defendants to be questioned separately and confronted with the statements already made by their…