Facts
Parties and procedural history:
The appellant ([A.] , b. 1988) was convicted by the District Court of Zurich on 11 November 2015 of attempted premeditated homicide (Art. 111 in conjunction with Art. 22 para. 1 SCC) against the appellee ([B.] , b. 1994) and sentenced to a custodial sentence of seven years. He was also ordered to pay compensation of CHF 25,000 (less CHF 20,000 already paid). Both the appellant and the appellee appealed against this judgment.
The Higher Court of the Canton of Zurich confirmed the conviction for attempted premeditated homicide on 3 October 2019, but reduced the sentence to four years’ imprisonment and increased the compensation to CHF 40,000 (less CHF 20,000 already paid).
Factual circumstances of the offence:
On 18 February 2014 at around 3:50 a.m., the appellant and the appellee met at the Milchbuck tram stop in Zurich in a highly intoxicated state. After a brief conversation, the appellee turned towards the tram tracks. The appellant then attacked him, strangled him, struck him on the head and kicked him. The appellee initially resisted but was found lying helpless on the ground from 4:13 a.m. onwards. The appellant attempted to pull him up, dropped him and left. He then returned, kicked the victim several times in the head and dragged him about two metres away. At around 4:16 a.m., he kicked the victim in the head again as the victim turned to the side. At 4:17 a.m., he kicked the victim’s arm and shortly thereafter again in the head. He then moved around the victim before, about 17 minutes later, kicking the motionless victim’s head with large swinging movements at least three times. He then left the scene but returned shortly afterwards. When he noticed the police, he fled into the tram tunnel and was finally arrested without resistance at the Tierspital stop at 4:54 a.m.
The appellant claims that at the time of the offence he was not criminally responsible due to an alcohol-induced psychosis. He relies on several private expert reports and a second expert report from Germany, which suggest a complete absence of capacity for insight and control (Art. 19 para. 1 SCC). The lower courts, however, found that there was a severe impairment of criminal responsibility and convicted him of attempted premeditated homicide.
The appellant particularly alleges a violation of the principle in dubio pro reo, the prohibition of arbitrariness, the right to be heard and incorrect sentencing.
Considerations
1. Assessment of criminal responsibility (Art. 19 SCC):
The Federal Supreme Court reviews the assessment of criminal responsibility by the lower courts only under the aspect of arbitrariness. According to Art. 19 para. 1 SCC, criminal responsibility requires capacity for insight and control. The lower court relied on the official expert report by Prof. Dr. [H.] , which found a severe impairment of control due to an alcohol-related disorder of consciousness and perception (ICD-10: F10.04), but denied a complete absence of control. Although the capacity for control was significantly impaired, the appellant still had residual capacity for control based on objectively ascertainable actions (e.g., waiting for a "favourable moment" to attack, fleeing from the police, later statements such as "I overreacted"). The lower court also took into account the statements made by the appellant close to the time of the offence, in which he perceived the appellee as a drug dealer who had threatened him and his family. However, it denied any additional psychotic delusional experience that would have made the destruction of the victim appear as the only means of salvation.
The Federal Supreme Court notes that the lower court was entitled to freely assess the expert reports and did not act arbitrarily in doing so. Although there were contradictory expert reports (official expert report vs. second expert report by Dr. [G.] from Germany), the lower court was not obliged to base its decision on the expert report more favourable to the appellant. The question of whether the capacity for control was completely absent involves a normative component that the court must decide. The lower court was entitled to rely on the official expert report, which found a severe impairment of criminal responsibility (Art. 19 para. 2 SCC), without assuming lack of criminal responsibility (Art. 19 para. 1 SCC). The allegation of a violation of the principle in dubio pro reo was dismissed, as this was a matter of a legal question rather than a question of evidence.
2. Sentencing and consideration of the impaired criminal responsibility:
The lower court assessed the culpability for the offence as very slight to slight, as the appellant acted with conditional intent and committed the offence in a state of severe impairment of criminal responsibility. The blood alcohol concentration (1.76–2.53‰) and the grossly negligent drinking behaviour were considered aggravating factors, as the appellant knew that alcohol consumption could lead to increased irritability and aggressive behaviour in him. However, no actio libera in causa was assumed, as the specific offence was not foreseeable. The lower court also took into account the post-offence…