Facts
Facts and procedural history:
The complainant ([X.] ) was accused on 4 October 2012 of having attacked the private complainant [A.] in Turbenthal by repeatedly using violence, in particular by kicking and kneeing her in the head, after first forcing her to the ground, dragging her to a wooden shed and covering her mouth when she began to scream. The private complainant suffered a mild concussion and multiple bruises to the face and head and was unable to work for one week. The complainant subsequently attacked two other women in a similar manner, causing them to suffer simple bodily harm.
The District Court of Winterthur convicted the complainant on 20 August 2014 of attempted grievous bodily harm and multiple counts of simple bodily harm to a custodial sentence of four years, with credit for 126 days of pre-trial detention. It also ordered a custodial therapeutic measure pursuant to Art. 59 SCC and established the complainant’s general liability for damages. The Higher Court of the Canton of Zurich upheld the conviction for attempted grievous bodily harm and the four-year custodial sentence with credit for 473 days of pre-trial and preventive detention as well as early enforcement of the sentence in its judgment of 3 September 2015. The custodial measure pursuant to Art. 59 SCC was also maintained.
The complainant, in his appeal to the Federal Supreme Court, alleged a violation of the indictment principle and an incorrect legal assessment of the alternative intent. He sought the quashing of the contested judgment and a conviction for simple bodily harm to a custodial sentence of 24 months. He also requested the granting of free legal aid.
Considerations
1. Violation of the indictment principle (Art. 325 CrimPC):
The complainant alleged that the indictment by the public prosecutor’s office did not meet the requirements of the indictment principle, in particular with regard to the alternative indictment of attempted grievous bodily harm. Although the indictment sufficiently described the external course of events, it did not sufficiently specify the subjective elements (alternative intent). The complainant criticised that the indictment contained no precise information as to which variants of the offence under Art. 122 SCC (grievous bodily harm) were under consideration, in particular whether there was a risk to life or other serious consequences. Moreover, internal facts such as the complainant’s emotional state during the offence had not been described in the indictment, which was contrary to the immutability principle (binding of the court to the indictment facts).
The Federal Supreme Court held that the indictment principle pursuant to Art. 325 CrimPC fulfils both a boundary-setting function (determination of the subject matter of the proceedings) and an information function (protection of the rights of the defence). The indictment must describe the facts with sufficient precision so that the accused person can recognise the conduct alleged against them. In the case of an alternative indictment, it is sufficient if the external facts remain identical and the subjective elements are sufficiently specified. In the present case, the indictment clearly stated that the complainant had acted with alternative intent by accepting the possibility of serious injuries. A precise medical description of the risks was not required, as this was an attempted offence and the result had not occurred. Moreover, the public prosecutor’s office had clarified the indictment during the appellate proceedings, thereby remedying any ambiguities. There was therefore no violation of the indictment principle.
2. Alternative intent and legal assessment:
The complainant disputed that his conduct had amounted to alternative intent within the meaning of Art. 12 para. 2 SCC. He argued that the kicks described by the lower court as being delivered with «a certain force» were not sufficient to infer alternative intent. Moreover, he claimed to have consciously dosed the intensity of his blows to avoid serious injuries. The lower court had also taken into account internal psychological processes (emotional exceptional state) that would have required a forensic-psychiatric assessment.
The Federal Supreme Court confirmed the legal assessment of the lower court. According to established case law, alternative intent exists where the offender considers the realisation of the offence possible and accepts it. What is decisive is not the actual severity of the injuries, but what the offender considered possible and accepted. The lower court had correctly pointed out that the head region is a particularly sensitive area and that kicks to the head of a person lying on the ground carry a high risk of serious injury. The complainant had acted in an emotional exceptional state in which he had lost control. This precluded any conscious dosing of the intensity of his blows. Rather, he had seriously accepted the risk of grievous bodily harm, as he had been aware that his actions could lead to life-threatening consequences or permanent damage. The inference of alternative intent was therefore…