Facts
The Federal Supreme Court reviewed in the appeal proceedings (1B_264/2012 of 10 October 2012) a decision of the Superior Court of the Canton of Bern (appeal chamber in criminal matters) of 13 April 2012. The subject of the appeal was the refusal to allow the accused and his court-appointed defence counsel to attend the questioning of his two co-accused in a criminal investigation into theft, conducted by the Regional Public Prosecutor’s Office Emmental-Oberaargau.
The accused had submitted requests to attend the questioning on 19 January 2012 and 26 January 2012, which were rejected by the public prosecutor’s office in decisions dated 13 January 2012 and 26 January 2012. The Superior Court of the Canton of Bern set aside these decisions and granted the accused the right to participate. The Attorney General of the Canton of Bern appealed this decision to the Federal Supreme Court and sought the annulment of the contested ruling insofar as it concerned the accused’s participation rights.
The accused had already undergone a prosecutorial questioning (pursuant to Art. 224 para. 1 CrimPC) and was in pre-trial detention, the grounds for detention including, inter alia, risk of collusion. The Attorney General argued that the accused’s and his counsel’s attendance at the questioning of the co-accused could lead to the falsification of evidence, in particular through collusion or warnings to accomplices.
Considerations
The Federal Supreme Court upheld the legality of the contested decision and dismissed the Attorney General’s appeal. The central legal issue concerned the interpretation of the right to participate pursuant to Art. 147 para. 1 CrimPC, in particular whether this also encompasses attendance at the questioning of co-accused and under what conditions exceptions are permissible.
Principle of party publicity and systematics of the CrimPC: The Federal Supreme Court clarified that the right to attend evidence-taking proceedings pursuant to Art. 147 para. 1 CrimPC fundamentally also applies to the questioning of co-accused. The provision in Art. 146 para. 1 CrimPC on the separate questioning of multiple persons does not constitute an independent exception to the right to participate, but rather serves primarily to ensure undisturbed fact-finding and to prevent collusion. The participation rights of the parties are separately regulated in Art. 147 CrimPC and may only be restricted under the statutory conditions (e.g. Art. 108 CrimPC). Evidence obtained in violation of Art. 147 para. 1 CrimPC is not admissible (Art. 147 para. 4 CrimPC).
No permissible exception in the present case: The Attorney General based the refusal to allow attendance on Art. 146 para. 1 CrimPC (separate questioning) and on Art. 108 para. 1 lit. a CrimPC (suspected abuse of rights). The Federal Supreme Court rejected both arguments. On the one hand, Art. 146 para. 1 CrimPC is not an independent basis for excluding party publicity. On the other hand, there were no concrete indications of abuse of rights within the meaning of Art. 108 para. 1 lit. a CrimPC. The mere possibility that the accused could adapt his procedural tactics…