Facts
Parties and procedural history:
The appellant [A.] was convicted by the District Court of Dorneck-Thierstein by judgment of 14 June 2021 of murder (14 March 2010), attempted organised robbery (14 March 2010), organised and commercial theft (29 June 2010) and forgery of documents (26 April 2019) to a custodial sentence of 17 years and 8 months. He was acquitted of the charge of organised robbery (3 February 2010). Both the appellant and the Office of the Attorney General of the Canton of Solothurn appealed against this judgment. The High Court of the Canton of Solothurn confirmed the first-instance convictions by judgment of 29 September 2022 and additionally convicted the appellant of organised robbery (3 February 2010) to a custodial sentence of 19 years and 2 months. It also confirmed the civil claim of the private plaintiff [B.B.] for compensation of CHF 35,000.--.
Factual circumstances of the offence:
On 14 March 2010, two perpetrators broke into the home of [C.B.] in [W.] /SO and subjected him to severe violence. [C.B.] suffered life-threatening head injuries and died on 15 July 2010 from bronchopneumonia. The perpetrators stole a house key and a car key but found no valuables. The appellant is accused of having committed the offence on behalf of [F.] together with [G.] . He is also accused of participating in a robbery in Wettingen (3 February 2010, proceeds CHF 860,000.--) and a theft in Spreitenbach (29 June 2010, proceeds CHF 160,000.--). He is further accused of forgery of documents for submitting a forged hospital discharge certificate in 2019 to construct an alibi for the time of the offence in [W.] .
The investigations led to the hearing of witness [H.] , whose statements played a central role in the evidence. [H.] was initially questioned as an informant and later examined as a witness. He incriminated the appellant and other co-defendants severely. [H.] was also admitted to a witness protection programme, which the appellant contested as an impermissible favour and a violation of Art. 140 CrimPC.
The appellant objected in particular to the use of statements obtained in violation of his right to participate (Art. 147 CrimPC) and to the consideration of evidence derived from such inadmissible statements. He also contested the violation of the right to confrontation and the insufficient reasoning of the contested judgment.
Considerations
1. Right to participate and admissibility of evidence (Art. 147 CrimPC):
The Federal Supreme Court confirmed the case law according to which the right to participate under Art. 147 para. 1 CrimPC only applies from the opening of the investigation by the public prosecutor’s office. Before that time, police hearings of parties are not subject to the right to participate unless the police act on behalf of the public prosecutor’s office. After the opening of the investigation, however, parties have the right to be present at hearings conducted by the public prosecutor’s office or on its behalf by the police and to ask questions. An exception exists for simple fact-finding measures to clarify the circumstances of the case, such as informal questioning of victims or witnesses, for which no right to participate exists.
The appellant could not rely on a violation of his right to participate since the contested hearings either took place before the opening of the investigation against him or within the framework of police preliminary investigations. Moreover, he did not concretely demonstrate how the statements objected to as inadmissible were actually used to his detriment. Art. 147 para. 4 CrimPC provides for an exclusionary rule only for defendants whose participation was denied and only to their detriment. The lower court was therefore entitled to consider the statements insofar as they were not directly used against the appellant. There is no general exclusionary rule.
2. Witness protection and assessment of evidence:
The admission of witness [H.] to a witness protection programme was deemed permissible by the Federal Supreme Court. The assurance of witness protection does not constitute an impermissible promise within the meaning of Art. 140 CrimPC, as the authorities are legally obliged to protect endangered witnesses. Moreover, there were no indications that the public prosecutor’s office had improperly assured [H.] of admission to the witness protection programme. The lower court was entitled to assess the witness’s statements as credible despite his self-interested motives (e.g. hope of obtaining a residence permit in Switzerland), as such motives do not necessarily affect the credibility of the statements. What matters is whether the statements can be deemed credible despite these motives, which had to be examined in the assessment of evidence.
The lower court assessed the statements of witness [H.] as consistent, detailed and partly corroborated by further evidence (e.g. DNA traces, getaway vehicle). There were no indications of false incrimination or a motive for false incrimination. The witness had no discernible interest in falsely incriminating the appellant or other defendants, as he himself was endangered by his statements and even incriminated himself (e.g. receiving stolen goods after the robbery in Wettingen).
3. Principle of immediacy and appellate proceedings (Art. 343, 389 CrimPC):
The Federal Supreme Court confirmed that the principle of immediacy under Art. 343 para. 3 CrimPC requires a single immediacy in the first-instance proceedings but not necessarily in the appellate proceedings. A renewed taking of evidence in the appellate proceedings is only required if direct knowledge of the evidence is necessary for the judgment and the evidence was incompletely or incorrectly taken in the first-instance proceedings. In the present case, witness [H.] had already been examined in court in the first-instance proceedings, and his statements were consistent and credible. The lower court was therefore entitled to refrain from a renewed…