Facts
The appellant was accused by the Public Prosecutor’s Office of Basel-Stadt of having been involved in an altercation at [U.] on the night of 31 July 2015 to 1 August 2015. Among other charges, he was accused of affray and attempted coercion. On 16 August 2018, the Criminal Court of Basel-Stadt convicted him of multiple counts of affray and attempted coercion and sentenced him to a suspended custodial sentence of 9 months with a probation period of 5 years. In some of the charges, the court dismissed the proceedings or acquitted the appellant.
Following the appellant’s appeal and the Public Prosecutor’s Office’s cross-appeal, the Appellate Court of the Canton of Basel-Stadt partially overturned the acquittals and dismissals with its judgment of 11 August 2020. It convicted the appellant of affray and attempted coercion and sentenced him to a suspended fine of 150 daily rates of CHF 100.- with a probation period of 2 years. It further acquitted him of the remaining charges.
The appellant complained in his appeal to the Federal Supreme Court of a violation of his right to confrontation, as he had only been given the opportunity to confront the prosecution witness [D.] more than five years later. He also contested arbitrary findings of fact, a violation of the principle in dubio pro reo, the revocation of legal aid, and the costs order imposed by the Appellate Court.
Considerations
1. Right to confrontation and prohibition of use
The appellant argued that his participation rights had been violated because the police interrogations of the prosecution witness [D.] had been conducted without his presence or that of his defence counsel. The Federal Supreme Court confirmed that before the opening of an investigation by the Public Prosecutor’s Office, there is no party presence, and the police are entitled to conduct simple investigations. However, the results of such interrogations may not be used if they contain incriminating statements and the appellant had no opportunity to confront the witness. The lower court had, however, cured the inadmissible statements by means of a renewed confrontation during the appeal hearing, in which [D.] was questioned in the presence of the appellant and his defence counsel. It emerged that the renewed questioning was not merely a formal confirmation of the earlier statements, but that the witness answered open questions and that the appellant or his defence counsel were able to ask questions. The right to confrontation was thus respected and the violation of the participation rights was cured. There was therefore no longer any prohibition of use.
2. Arbitrary findings of fact and assessment of evidence
The appellant complained that the lower court had made arbitrary findings of fact and violated the principle in dubio pro reo. The Federal Supreme Court dismissed this complaint, as the lower court had conducted a careful and comprehensible assessment of the evidence. It analysed the statements of all parties and witnesses, took account of contradictions and gaps in memory, and drew plausible conclusions. The appellant had not shown that the lower court had overlooked significant evidence or arbitrarily assessed it. The assessment of evidence was therefore not arbitrary and complied with the requirements of federal law.
3. Offence of affray
The appellant denied his involvement in the affray and argued that there had been no violent altercation involving at least three persons and no intent. The Federal Supreme Court confirmed the lower court’s qualification. An affray exists where at least three persons are mutually involved in a violent altercation that results in bodily harm or death. The appellant had initiated the altercation by punching [D.] and threatening further blows. After a third party ([J.] ) intervened, he continued his violent acts by throwing further punches. He thus fulfilled the subjective and objective elements of the offence of affray. The objective condition of criminal liability was…