Facts
In the criminal proceedings conducted by the Winterthur/Unterland Public Prosecutor’s Office against the accused A., defence counsel X. acted both as official defender and as free legal representative of the private complainant B. In the main hearing before the District Court of Winterthur, X. claimed total compensation of CHF 16,820.- (incl. VAT) for his services, but was unable to provide separate details of the expenses incurred for the two functions. With a judgment rendered orally on 9 July 2015, the District Court awarded X. compensation of CHF 5,610.- (incl. VAT) for the free legal representation. As X. was not present at the pronouncement of the judgment, the operative part of the judgment was served in writing on him on 14 July 2015. The accused A. filed an appeal within the time limit but later withdrew it. X. received the reasoned judgment on 9 November 2015.
On 19 November 2015, X. filed an appeal with the Higher Court of the Canton of Zurich against the amount of the compensation awarded, seeking an award of CHF 16,820.-. By decision of 3 May 2016, the Higher Court declined to enter into the merits of the appeal on the ground that it had not been filed within the 10-day time limit from service of the operative part of the judgment. X. then filed an appeal in criminal matters with the Federal Supreme Court.
Considerations
The Federal Supreme Court first examined the question of when the time limit for appeal against a judgment fixing compensation for official defence and free legal assistance begins to run. It held that the time limit for appeal under Art. 384 lit. a CrimPC does not begin to run upon service of the operative part of the judgment, but only upon receipt of the written, reasoned judgment. This follows from a systematic interpretation of the CrimPC, according to which the lodging of an appeal requires knowledge of the grounds for the decision. Under Art. 396 para. 1 CrimPC, the appeal must be filed in writing and with reasons within 10 days, the time limit only beginning to run once the complete and reasoned judgment has been received.
The Federal Supreme Court noted that official defenders and free legal representatives of the private party are not parties to the proceedings and their right to appeal does not derive from Art. 382 CrimPC, but from the special provisions of Art. 135 para. 3 and Art. 138 para. 1 in conjunction with Art. 135 para. 3 CrimPC. They are entitled only to lodge an appeal, not an appeal in the ordinary way. This distinction is crucial since judgments are generally challenged by way of appeal and decisions or orders by way of appeal. An appeal against a judgment is admissible only if the judgment concerns solely ancillary consequences or costs.
The Federal Supreme Court further emphasised that the time limit for appeal begins to run only once the person concerned has all the essential elements needed to justify an appeal. This corresponds to the constitutional right to a hearing (Art. 29 para. 2 Cst.) and the principle of good faith. A decision must be drafted in such a way that the person concerned is fully aware of its implications and can decide, with full knowledge of the…