Facts
The Public Prosecutor's Office of the Canton of Basel-Stadt conducted a criminal investigation against the appellant ([A.] ) on suspicion of coercion, breach of public peace, trespassing, criminal damage and obstruction of public officials. She was accused of having surrounded the UBS building at St. Alban-Anlage in Basel together with other persons shortly after 06.00 a.m. on 8 July 2019, as part of the Climate Action Days ('Collective Climate Justice'). Slogans had allegedly been painted with pieces of coal, surveillance cameras taped over, and entrances blocked with wooden barricades and piles of coal.
After a warning from the Cantonal Police, various activists left the premises between 2.00 p.m. and 2.05 p.m. The appellant and other persons remained on site despite being asked to leave, were carried away and provisionally detained. The appellant did not have her identity card with her but disclosed her name.
On 8 July 2019 the Public Prosecutor's Office issued an order for identification measures (fingerprints, photographs) and non-invasive sampling (buccal swab), and on 9 July 2019 ordered the creation of a DNA profile. By decision of 20 March 2020 (BES.2019.161), the Appeals Court of the Canton of Basel-Stadt (single judge) annulled the DNA order of 9 July 2019 and instructed the Public Prosecutor's Office to delete the DNA profile. The appeal against the identification order of 8 July 2019 was dismissed.
The appellant lodged a criminal law appeal (1B_287/2020) and requested the complete annulment of the identification order regarding the fingerprints, alternatively a finding of unlawfulness, as well as the destruction of the fingerprints and the deletion of any database entries. The Public Prosecutor's Office for its part lodged an appeal (1B_293/2020) and requested the annulment of the lower court's decision regarding the DNA profile and a finding that the DNA order was lawful. Suspensive effect was granted by presidential order of 30 June 2020.
The subject matter of the dispute was the admissibility of identification measures (fingerprints) and of the creation of a DNA profile, which were intended not to clarify the ongoing criminal investigation but to identify perpetrators of future or other offences.
Considerations
Proceedings 1B_287/2020 and 1B_293/2020 were joined, as they concern the same decision and raise the same legal questions. The contested single-judge decision is appealable as a final decision under Art. 90 FSCA, since the coercive measures have an independent significance extending beyond the criminal proceedings (Art. 78 para. 1, Art. 80 FSCA). The appellant is entitled to appeal as the addressee of the measures under Art. 81 para. 1 FSCA. The standing of the Public Prosecutor's Office in proceedings 1B_293/2020 was left open, since the creation of the DNA profile is in any event unsuitable and disproportionate. The Public Prosecutor's Office's appeal is admissible only insofar as it was lodged by the management board (First Public Prosecutor) (§ 95 GOG/BS; Art. 81 para. 1 lit. b no. 3 FSCA). Complaints of manifestly incorrect findings of fact are not to be examined in the absence of a substantiated argument (Art. 97 para. 1, Art. 105 FSCA).
DNA sampling and profile creation, as well as identification measures, may be ordered under Art. 255 para. 1 lit. a CrimPC, Art. 259 CrimPC in conjunction with Art. 1 para. 2 lit. a DNA Profiles Act, and Art. 260 para. 1 CrimPC, including for the identification of perpetrators of unknown past or future offences. However, routine (invasive) collection or identification measures are not permissible. The measures constitute a slight interference with physical integrity (Art. 10 para. 2 Cst.) and with informational self-determination (Art. 13 para. 2 Cst., Art. 8 ECHR), and must be legally based, serve a public interest, be proportionate, be grounded in a sufficient suspicion of guilt, be subsidiary and concern a serious offence, in accordance with Art. 36 Cst. and Art. 197 para. 1 CrimPC.
As regards the suitability for clarifying the offence giving rise to the measures, the Federal Supreme Court considered the DNA profile creation unsuitable, since the appellant's presence was established by apprehension in flagrante and no DNA was secured from damaged objects, so that no individual contributions to the conduct could be attributed to her. Likewise, the fingerprints were unsuitable, since no fingerprints were secured from the damaged objects and therefore no trace comparison was possible. The lower court's reasoning that the police were permitted to treat the 'recalcitrant core' differently is unconvincing, since routine collection is impermissible. The argument based on establishing identity also fails, since the appellant had disclosed her name and her identity could be verified.
As to admissibility with regard to possible further offences, according…