Violation of the right to confrontation during police interrogation prior to the opening of criminal proceedings

Facts

The appellant [A.] was convicted by the Cantonal Court of St. Gallen for hindering measures to determine fitness to drive as a motor vehicle driver and sentenced to a conditional fine of 20 daily rates of CHF 100.--. The appellant complained that the statements made by [D.] (informant) during the interrogation on January 21, 2016, to which he was initially unable to respond, were inadmissible.

The police interrogation of the informant took place before the opening of the criminal investigation, with neither the appellant nor his defense counsel present. The confrontation interrogation, with the appellant's right to participate, did not take place until December 6, 2018.

The informant exercised her right to refuse to testify when asked about the time the journey began, the route taken, and the purpose of the journey. She also answered "Nothing. Nothing." to the question of what she wanted to say about the missing exterior mirror on [B.] and the scratches on [C.] .

The appellant does not dispute that the police interrogation of January 21, 2016, took place before the opening of the criminal investigation, at which time neither he nor his defense counsel had a right to participate under Art. 147 para. 1 CrimPC.

Considerations

The Federal Court held that the right to confrontation also applies to statements made during the preliminary investigation to the police. In principle, conducting an interrogation without the participation of the accused does not preclude the repetition of the evidence.

However, if the interrogation is repeated or a confrontation interrogation is conducted at a later time, the criminal authorities may not rely on the results of the previous interrogations to the extent that they are subject to a prohibition on the use of evidence. Records of inadmissible evidence must be removed from the criminal files under Art. 141 para. 5 CrimPC, kept under separate seal until the final conclusion of the proceedings, and then destroyed.

The right of the accused person, guaranteed by Art. 6 para. 3 lit. d ECHR, to put questions to the witness who testifies against him is a particular aspect…