Facts

Parties: Appellant: Public Prosecutor's Office of the Canton of Zurich; Respondent: A.A.

Facts: A.A. is accused of killing his wife B.A. on October 19, 2009. After several years of investigation and an acquittal by the Higher Court of the Canton of Zurich, the Public Prosecutor's Office filed an appeal with the Federal Supreme Court. During the investigation, an undercover operation was conducted in which A.A. was induced to make confessions by undercover investigators. The lower court deemed these confessions inadmissible.

Main issue: Whether the confessions obtained by undercover investigators through excessive pressure and deception are admissible.

Considerations

The admissibility of evidence obtained during an undercover investigation presupposes that the guarantees of Art. 140 para. 1 CrimPC are respected. If a suspect is induced by an undercover investigator to make self-incriminating statements through excessive pressure and by circumventing the privilege against self-incrimination, such statements are absolutely inadmissible under Art. 141 para. 1 CrimPC.

The undercover investigation must not lead to a circumvention of the right to remain silent. Such circumvention occurs when the undercover investigator, exploiting the created relationship of trust, questions the suspect in an interrogation-like manner with questions that were or should have been asked during the interrogation, and pressures him to make a statement.

The undercover investigation must not be misused to circumvent Art. 140 and 141 para. 1 CrimPC and, in particular, the right to remain silent. Art. 293 para. 4 CrimPC only regulates how to proceed in cases of excessive influence on the willingness to commit the offense and the decision to commit the offense. However, the provision does not deal with prohibited methods of evidence gathering. If such methods were used or the privilege against self-incrimination was violated, Art. 141 para. 1 CrimPC is decisive even in the case of an undercover investigation, and an absolute prohibition on the use of such evidence applies.

In the…