Facts
On 24 June 2014, the Zurich-Limmat Public Prosecutor’s Office issued a penal order against the accused for assault. One of the injured parties filed an objection to this penal order on 14 July 2014, whereupon the conduct of the criminal investigation was transferred to the Public Prosecutor’s Office IV of the Canton of Zurich.
On 21 November 2014, the accused applied to the Public Prosecutor’s Office for the removal of the record of his police interrogation of 24 June 2014 – which had taken place without the presence of a defence counsel – from the case file and for it to be kept under seal until the final conclusion of the criminal proceedings. He also requested that the interrogation be repeated in the presence of the court-appointed defence counsel, who had been assigned on 25 August 2014. The Public Prosecutor’s Office dismissed these applications by order of 24 November 2014.
The accused filed an appeal with the Higher Court of the Canton of Zurich on 4 December 2014, which the III. Criminal Division dismissed by decision of 10 February 2015. On 18 February 2015, the accused filed an appeal with the Federal Supreme Court against this decision. He sought the annulment of the contested decision, the removal of the interrogation record from the case file and its retention under seal until the conclusion of the proceedings.
The Federal Supreme Court did not enter into the appeal.
Considerations
The Federal Supreme Court first examined the admissibility of the criminal appeal under Art. 93 para. 1 lit. a FSCA, which requires an irreparable legal disadvantage. Such a disadvantage exists if it cannot be remedied by a subsequent final decision. The mere fact that a contested piece of evidence remains in the case file does not, in principle, constitute such a disadvantage, since the appellant may raise objections to its admissibility again until the conclusion of the criminal proceedings. The trial judge is required to separate inadmissible evidence from admissible evidence and may not use the latter. The appellant may appeal against the judgment by way of an appeal and ultimately a complaint to the Federal Supreme Court.
Exceptions to this rule are only to be assumed in narrowly defined cases, in particular where the law provides for the immediate return or destruction of unlawful evidence (e.g. Art. 248, 271 para. 3, 277, 289 para. 6 CrimPC) or where the unlawfulness of the evidence is immediately apparent. A particularly weighty legally protected interest in the immediate establishment of inadmissibility must be asserted, for example in the case of a violation of protected private secrets. A mere factual interest of the accused in avoiding incriminating evidence is not sufficient.
In the present case, the accused’s police interrogation on 24 June 2014 was conducted without a defence counsel. At the time of the interrogation, however, it was not yet apparent that the accused faced a potential custodial sentence of more than one year, as the severity of the victim’s…