Partial Admission of the Appeal due to Violation of the Principle of Expediency

Facts

The appellant [A.] was sentenced by the District Court of Zurich to an unconditional prison sentence of 33 months for attempted serious bodily harm and affray. [A.] appealed against this judgment. The High Court of the Canton of Zurich upheld the judgment in principle and additionally ordered outpatient treatment and probation assistance for its duration. [A.] requested the Federal Court to overturn the High Court's judgment and refer the matter back to the lower court for reassessment.

The main hearing before the High Court took place on January 15, 2021, and the written reasoned appeal judgment is dated October 27, 2021. The appellant alleges a violation of the prohibition of deterioration, the principle of expediency, incorrect sentencing, and a violation of the right to be heard.

Considerations

The Federal Court examined the complaint of violation of the prohibition of deterioration under Art. 391 para. 2 CrimPC. The appellant had declared before the lower court that he agreed to the ordering of an outpatient measure, even if the execution of the prison sentence was not suspended. By doing so, the appellant waived the guarantees provided by Art. 391 para. 2 CrimPC.

The Federal Court also examined the complaint of incorrect sentencing. The appellant claimed that the lower court had insufficiently taken into account the fact that the serious bodily harm was only attempted, his confession, and the health problems identified in the forensic psychiatric report. However, the Federal Court found that the appellant had not met the reasoning requirements of Art. 42 para. 2 FSCA.

The Federal Court also examined the complaint of…