Facts
The complainant A. was charged by summary punishment order of 16 May 2017 with participating in a riot on 25 April 2015 in Bern. At the unauthorised demonstration with around 300 participants, damage to property is said to have been caused by graffiti at several locations. The complainant is alleged to have played an active role and distributed flyers. The Public Prosecutor’s Office of Bern-Mittelland sentenced him to a suspended fine of 60 daily rates of 30 francs each. After objection and appeal, the Regional Court of Bern-Mittelland and the High Court of the Canton of Bern upheld the judgment. The complainant challenged the admissibility of private video recordings made during the demonstration as evidence.
Considerations
1. Principles regarding the admissibility of illegally obtained evidence The Federal Supreme Court confirms that evidence obtained by criminal authorities in a criminal manner or in violation of validity provisions is not admissible under Art. 141 para. 2 CrimPC, unless its admission is indispensable for clarifying serious offences. In the case of evidence obtained unlawfully by private individuals, it must additionally be examined whether such evidence could lawfully have been obtained by the prosecution authorities and whether an interests’ balancing test favours its admission. The decisive factor is the public interest in establishing the truth compared to the private interest of the accused person in the inadmissibility of the evidence.
2. Definition of a serious offence under Art. 141 para. 2 CrimPC The term serious offence is not exhaustively defined. The Federal Supreme Court rejects a purely abstract consideration of the threatened penalty and instead emphasises the importance of the specific circumstances of the individual case. Relevant criteria include the legal interest protected, the extent of the danger or injury, the perpetrator’s method of operation and the motive for the offence. What is decisive is not the penalty abstractly threatened, but the severity of the actual offence.
3. Rioting as a serious offence The offence of rioting (Art. 260 para. 1 SCC) is a misdemeanour, but may in the specific case be qualified as a serious offence within the meaning of Art. 141 para. 2 CrimPC. Rioting violates public peace and order and may lead to serious acts of violence. The public interest in clarifying such offences regularly outweighs the interest of the accused person in the inadmissibility of private video recordings. The lower court was therefore entitled to admit the video recordings showing the complainant’s participation in the unauthorised demonstration on public ground.
4. Individual contribution to the offence and interests’ balancing test The severity of the offence is not to be assessed…