Federal Supreme Court, 08.24.2026, 7B_139/2026
Facts
The appellant, who has multiple prior convictions, notably for violations of the Federal Act on Narcotics (LStup) and the Federal Act on Foreign Nationals and Integration (LEI), was arrested on November 18, 2025, while subject to entry bans for Geneva and Switzerland. On December 11, 2025, he also sold a pellet of cocaine to a police officer acting as part of an operation targeting drug trafficking. In each of the proceedings opened following these events, the Public Prosecutor's Office ordered, on November 19 and December 12, 2025, the "establishment" of the appellant's DNA profile based onArt. 255 para. 1bis of the Swiss Criminal Procedure Code (CrimPC), in order to clarify potential past violations of the LStup. The Criminal Appeals Chamber confirmed both orders. The appellant appealed to the Federal Supreme Court, requesting in particular their annulment and the deletion of the newly registered profiles. The cases were joined due to their connection (consideration 1, 2.1-2.7).
Law
The Federal Supreme Court recalls that a distinction must be made between the collection of a DNA sample, its analysis to establish a profile, and the simple administrative registration of a profile already existing in CODIS under a new PCN number. When a profile is already available and scientifically usable, a new procedure may lead to its re-registration without a new sample or analysis (consideration 4.2.1-4.2.3).
The establishment, storage, and re-registration of a DNA profile constitute infringements of the right to informational self-determination guaranteed by Art. 13 para. 2 of the Federal Constitution and Art. 8 of the ECHR. Any measure must therefore be based on a legal foundation, pursue a public interest, and respect the principle of proportionality—meaning it must be appropriate, necessary, and reasonably required. Art. 255 para. 1bis CrimPC allows for the establishment of a DNA profile when concrete evidence suggests that the accused may have committed other crimes or misdemeanors. However, the retention and deletion periods are governed by Art. 16 et seq. of the DNA Profiles Act (consideration 5.1.1-5.2).
Application to the specific case
In this instance, no new sample was collected and no new profile was physically established. The contested orders were intended solely to re-register the existing profile in CODIS, link it to the new proceedings, and potentially extend its retention period (consideration 4.3).
The appellant did not contest the existence of the concrete evidence required by Art. 255 para. 1bis CrimPC, nor the public interest in clarifying past offenses. The decisive question concerned proportionality. However, his DNA profile was already slated to be kept until at least 2044 or 2045, given his prior convictions and the twenty-year period provided for by Art. 16 para. 2 let. b of the DNA Profiles Act. The new registrations could therefore only have extended this duration in certain future conviction scenarios (consideration 5.3-5.5.1).
The Federal Supreme Court notes above all that the profile remained usable for nearly twenty years, a duration exceeding the ten- or fifteen-year limitation periods applicable to the contemplated LStup offenses. A simple consultation of CODIS was therefore sufficient to allow for any useful future comparison. The potential additional extension thus provided no significant concrete advantage to the criminal prosecution, while it increased the infringement of the appellant's privacy. The measures were consequently disproportionate (consideration 5.5.2-5.5.3).
Issue
The appeals are upheld. The orders of November 19 and December 12, 2025, are set aside, and any profile newly registered on those occasions must be deleted from CODIS. No court costs are charged, and the appellant is awarded 3,000 francs in legal fees (consid. 5.6, 6).