Facts
The Juvenile Prosecutor's Office of the Canton of Basel-Stadt is conducting juvenile criminal proceedings against the appellant ([A.] ) for coercion, violation of the public peace (Landfriedensbruch), trespass (Hausfriedensbruch) and property damage. The offences were committed on 8 July 2019 during a demonstration within the framework of the so-called Collective Climate Justice days.
On 21 August 2019 the appellant requested the appointment of an official defence counsel. The Juvenile Prosecutor's Office rejected the request by order of 28 August 2019. The appeal lodged against this was dismissed by the Appellate Court of the Canton of Basel-Stadt (single judge) by decision of 16 December 2019.
The appellant, represented by lawyer Dr. Nicolas Roulet, lodged an submission with the Federal Supreme Court on 12 February 2020. He requested the full annulment of the decision and the granting of official defence for the entire juvenile criminal proceedings; in the alternative, he requested legal aid. The Appellate Court and the Juvenile Prosecutor's Office requested that the appeal be dismissed. The Public Prosecutor's Office pointed out that in the meantime a summary penalty order had been issued against the appellant, imposing a reprimand (Verweis).
Before the Federal Supreme Court, the appellant argued that criminal proceedings were being conducted against his mother in the same matter, so that a conflict of interests existed. For this reason his mother had been unable to accompany him to the police interview of 4 September 2019, when he was just under 13 years old. He further complained of a violation of the principle of equality before the law, as various adults in the same matter were being subject to regular criminal proceedings with possible custodial sentences and fines of 150-180 daily penalty units.
Considerations
The Federal Supreme Court admitted the appeal in criminal matters. It concerns a final cantonal interlocutory decision, rendered separately, which may cause an irreparable harm within the meaning of Art. 93 para. 1 lit. a FSCA. The appellant has standing under Art. 81 FSCA. An appeal in criminal matters may complain of violations of federal law (Art. 95 lit. a FSCA). Complaints of violations of fundamental rights are only examined if they are clearly and specifically substantiated (Art. 106 para. 2 FSCA).
The question in dispute was whether the appellant was entitled to official defence under Art. 24 lit. b in conjunction with Art. 25 para. 1 lit. c JCrimPC. Mandatory defence exists where the accused juvenile cannot adequately safeguard his own procedural interests and the legal representative is also unable to do so. Personal reasons (e.g. language or specialist knowledge, intellectual abilities, conflicts of interest, need for support) and objective reasons (particular difficulty or complexity of the proceedings, seriousness of the charge) must be taken into account. The more complicated the facts and legal assessment, the more likely an inability to defend oneself is to be affirmed (BGE 138 IV 35 E. 6.3).
As regards personal reasons, the Federal Supreme Court held that a merely abstract or theoretical possibility of opposing interests between son and mother was insufficient. A concrete conflict of interests had neither been asserted nor was apparent. The mother had taken care of the legal representation and had advocated for her participation in the interview. Juveniles accused who have the capacity for judgment may exercise their party rights independently under Art. 19 para. 2 JCrimPC and call in a trusted person under Art. 13 JCrimPC. The appellant was intellectually, physically and psychologically able to safeguard his interests, which he himself did not dispute. His young age of just…