Facts
The appellant [X.] was sentenced by the District Court of Rheintal to a prison term of 3 ¼ years for a crime against the Narcotics Act. The conviction was based on the finding that he transported and imported 6.112 kilograms of heroin mixture with a purity of 8% in a fire extinguisher on April 26, 2010. The Swiss authorities were informed of the impending drug transport by Slovenian authorities after they had conducted a telephone surveillance. The appellant complained that the telephone surveillance had not been authorized in Slovenia or Switzerland and that the evidence obtained was therefore inadmissible.
The Cantonal Court of St. Gallen dismissed the appellant's appeal and confirmed the conviction. The appellant filed a criminal appeal with a request to quash the judgment and fully acquit him, as well as to release him from detention immediately.
Considerations
The Federal Court examined the admissibility of the evidence obtained from the telephone surveillance conducted abroad. It found that the telephone surveillance had taken place in Slovenia at the request of the Slovenian law enforcement authorities and that authorization in Switzerland was not required. The Court held that the use of evidence from the Slovenian telephone surveillance was unproblematic from a Swiss perspective, as the measure would have been permissible in Switzerland as well, based on a corresponding strong suspicion of a quantitatively qualified violation of the Narcotics Act.
The Court also discussed the question of whether the telephone surveillance was legal in Slovenia. It found that the cantonal law enforcement authorities could obtain a written statement from the competent Slovenian authorities regarding the lawfulness of the surveillance measure. The Court held that the mere theoretical possibility of obtaining the evidence lawfully was not sufficient and that the specific circumstances of the individual case were decisive.
The Court also examined the question of whether the exclusionary rule should be denied with…