Facts
Parties and instances:
The appellant X. was convicted by the Emmental-Oberaargau Regional Court on 12 May 2011 of aiding and abetting multiple offences, including theft, criminal damage, trespass, gang and commercial theft and attempted such offences, multiple violations of the Foreign Nationals Act (AuG) and the Narcotics Act (NarcA).
The court imposed a custodial sentence of 34 months, a fine of 200 Swiss francs and the enforceability of a previously suspended custodial sentence of 20 months. X. appealed against this judgment.
The Higher Court of the Canton of Bern convicted X. on 14 June 2012 of theft, gang and commercial theft and attempted such offences, multiple criminal damage and trespass. It confirmed the custodial sentence of 34 months and the enforceability of the 20-month sentence. The conviction for violation of the Narcotics Act and the fine of 200 Swiss francs remained uncontested.
X. filed a criminal appeal with the Federal Supreme Court seeking full acquittal. In the alternative, he requested that his involvement be qualified as aiding and abetting and that the case be referred back to the lower court. Subsidiarily, he sought a reduction in sentence and the waiver of revocation of the suspended sentence.
The Higher Court of Bern requested dismissal of the appeal, insofar as it was admissible. The public prosecutor’s office declined to submit a statement.
Considerations
The Federal Supreme Court examined whether the Higher Court of Bern had violated the prohibition of reformatio in pejus (Art. 391 para. 2 first sentence CrimPC) by changing the legal qualification from aiding and abetting to co-perpetration in the case of the burglary theft of 21 May 2009. The court analysed the scope of this prohibition and reached the following conclusions:
1. Interpretation of the prohibition of reformatio in pejus:
The Federal Supreme Court confirmed that the prohibition of reformatio in pejus not only covers a harsher sanction but also a stricter legal qualification of the act. This is the case if the new offence carries a higher sentencing range (e.g. a higher maximum sentence or a higher minimum sentence) or includes additional convictions. The same applies if the qualification is changed from attempt to completed offence or from aiding and abetting to co-perpetration, as this results in the loss of potential mitigating factors. The decisive factor is the operative part of the judgment, not the reasoning of the lower court.
2. Historical and teleological interpretation:
The legislative materials on the CrimPC (Message of the Federal Council) show that the legislator favoured a broad interpretation of the prohibition. The purpose of the prohibition is to protect the accused from the fear of being worse off by lodging an appeal. A stricter qualification increases the culpability and may entail concrete disadvantages (e.g. entry in the criminal record), which could deter the exercise of the right of appeal. The principle of material truth is restricted by the prohibition, as the legislator only allows the possibility of revision to the detriment of the accused (Art. 410 para. 1 lit. a CrimPC) under certain conditions.
3. Systematic interpretation and practice:
The Federal Supreme Court referred to the uniform doctrine and practice supporting a broad interpretation of the prohibition. Although there were previously cantonal provisions that interpreted the prohibition more narrowly, the federal…