Facts
Parties: Public Prosecutor's Office of the Canton of Zurich (appellant) against X. (respondent)
Court: Federal Supreme Court, Criminal Law Division
Date: September 28, 2016
Facts:
- X., born in 1990, met the allegedly 14-year-old "Sabrina" under the pseudonym "student_bs" in the "Chatmania" chatroom on September 17, 2013.
- X. communicated with "Sabrina" and exchanged email addresses, photos, and SMS messages, initiating sexual acts.
- On September 25, 2013, X. went to the agreed meeting point at Zurich main station, where he encountered police officers who identified themselves as such.
- Several data carriers with pornographic material were seized during the criminal investigation.
- The Zurich Cantonal Court found X. guilty of multiple counts of pornography, some attempted, but acquitted him of the charge of attempted sexual acts with children.
- Both the Public Prosecutor's Office and X. filed an appeal with the Federal Supreme Court.
Legal Issue: Whether covert police involvement in communication in internet chat forums constitutes a covert investigation requiring authorization under Art. 285a CrimPC or a covert search not requiring authorization under Art. 298a CrimPC.
Considerations
The Federal Supreme Court first examines the legal bases and defining features of covert investigation and covert search under the current CrimPC. It establishes that a covert investigation under Art. 285a CrimPC requires documented legend building and the establishment of a trust relationship. A covert search under Art. 298a CrimPC, on the other hand, does not require documented legend building and is aimed at shorter operations.
In the present case, there is no documented legend building, as "Sabrina" only appeared under a pseudonym and with simple lies. Furthermore, no trust relationship was established as required by Art. 285a CrimPC, as the communication was aimed at initiating sexual contact and there…