Facts
The appellant A. was convicted by the Superior Court of the Canton of Bern on 11 March 2008 of multiple sexual acts with children, sexual coercion, sexual harassment and pornography to a custodial sentence of 35 months and a fine of 500 Swiss francs. At the same time, the court ordered a custodial therapeutic measure pursuant to Art. 59 SCC, the execution of which was suspended in favour of the measure.
On 9 May 2017, the Probation and Execution Services of the Canton of Bern (BVD/BE) released A. conditionally from the custodial measure under conditions. A. filed an appeal with the Federal Supreme Court against the instructions regarding the prohibition of contact with minors and the obligation to declare internet-enabled devices, which was dismissed by judgment of 5 July 2018.
On 5 September 2018, the Criminal Court of the Canton of Basel-Stadt convicted A. of multiple pornography offences, violence and threats against authorities, and serious and simple violations of traffic regulations to a custodial sentence of 17 months and a fine of 500 Swiss francs. In addition, the court prohibited A. for ten years from any professional or organised non-professional activity involving contact with minors and ordered probation. A return to in-patient psychiatric treatment was rejected; instead, the probation period was extended by one year.
Both the Public Prosecutor's Office of the Canton of Basel-Stadt (with regard to sentencing and the waiver of return to the custodial measure) and A. (with regard to sentencing) appealed against this judgment. On 2 November 2020, the Appellate Court of the Canton of Basel-Stadt convicted A. to a custodial sentence of 27 months and a fine of 500 Swiss francs. It lifted the in-patient psychiatric treatment and ordered detention pursuant to Art. 64 SCC. The request by A. to declare the Canton of Basel-Stadt responsible for the execution of the measure was rejected.
A. filed an appeal in criminal matters with the Federal Supreme Court against this judgment and requested the annulment of the judgment and a more lenient sentence. Alternatively, he demanded that the case be referred back for re-examination or that outpatient aftercare measures be ordered. The Federal Supreme Court dismissed the appeal insofar as it took it into consideration.
Considerations
The Federal Supreme Court examined the appellant's objection that the lead public prosecutor had validly withdrawn the Public Prosecutor's Office's appeal before the appeal hearing of 9 July 2019. The lower court had denied this and qualified the withdrawal as invalid, since the lead public prosecutor had acted without the consent of the Chief Public Prosecutor. Pursuant to § 6 para. 4 no. 2 of the Ordinance of the Canton of Basel-Stadt on the Composition, Organisation and Powers of the Public Prosecutor's Office, the decision on the lodging of legal remedies – including their withdrawal – lies with the Chief Public Prosecutor. This regulation primarily serves to ensure legal equality and uniformity in the practice of legal remedies and is to be qualified as a validity provision.
The appellant argued that the regulation violated the prohibition of arbitrariness and the guarantee of a fair trial (Art. 29 Cst., Art. 6 ECHR), since it ignored the long-standing practice of lead public prosecutors withdrawing legal remedies on their own responsibility. The Federal Supreme Court rejected this argument. The cantonal regulation is based on a sufficient legal basis pursuant to Art. 14 para. 1 and 2 CrimPC, under which the cantons may regulate the organisation of the Public Prosecutor's Office. The lower court did not violate the prohibition of arbitrariness by interpreting the provision to the effect that the Chief Public Prosecutor must decide not only on the lodging but also on the…