Facts
The complainant [X.] was accused by the Basel-Stadt Public Prosecutor’s Office of having struck his father’s acquaintance [A.] (private prosecutor) with a fist to the face on 11 March 2014 following a verbal dispute, causing the latter to fall to the ground. The complainant then kicked the private prosecutor, who was lying on the ground, in the face and left without rendering any further assistance. As a result of the injury, the private prosecutor almost completely lost the sight in his right eye. On 30 March 2015, the Basel-Stadt Criminal Division convicted the complainant of serious bodily harm and sentenced him to a suspended custodial sentence of 20 months and an award of satisfaction of 30,000 Swiss francs to the private prosecutor. On 9 November 2016, the Basel-Stadt Court of Appeal upheld this judgment.
The complainant, in his appeal to the Federal Supreme Court, alleged a violation of his right to participate in proceedings, as he and his defence counsel had not been permitted to be present during the private prosecutor’s examination as a witness on 19 May 2014. He also contested the legal assessment of the act as eventual-dolus serious bodily harm under Art. 122 para. 2 SCC and sought a conviction for negligent serious bodily harm. The Basel-Stadt Public Prosecutor’s Office and the Basel-Stadt Court of Appeal requested that the appeal be dismissed with costs. The private prosecutor was not examined in a formally valid manner.
Considerations
The Federal Supreme Court first examined the complaint regarding the violation of the right to participate in proceedings under Art. 147 CrimPC. It confirmed that the parties’ right to participate in evidence-taking by the Public Prosecutor’s Office and the courts is fundamentally guaranteed once the public prosecutor’s investigation has been opened. Restrictions on this right are only permissible under strict conditions, in particular where there is a concrete risk of collusion that could jeopardise the purpose of the investigation. A mere abstract risk of jeopardising the interests of the proceedings is not sufficient to restrict the right to participate. In the present case, the private prosecutor’s examination as a witness was conducted after the public prosecutor’s investigation had been opened, without any concrete risk of collusion having been demonstrated. The lower court had, however, cited substantive reasons for conducting a separate examination in order to assess the credibility of the allegations. The Federal Supreme Court saw no violation of the right to participate and held that the lower court’s findings of fact were not arbitrary.
The Federal Supreme Court then assessed the complaint regarding the incorrect subsumption of the subjective elements of the offence. The complainant had argued that the mere knowledge of the risk of serious bodily harm could not be construed as eventual dolus. The Federal Supreme Court recalled that eventual dolus exists where the offender considers the occurrence of the result possible and accepts it. The lower court had found that the complainant had struck the elderly and mobility-impaired private prosecutor with a powerful punch to the face, which clearly posed the risk of serious injury. In light of the gravity of the possible consequences and the specific circumstances of the act, the lower court was justified in concluding, without…