Severe Bodily Harm: Violation of the Right to be Present and Prohibition of Evidence Use

Facts

The appellant [A.] was convicted of severe bodily harm by the High Court of the Canton of Zurich. The conviction was based mainly on the statements of witnesses [D.] and [E.] , who were questioned by the police without the presence of the appellant or his defense counsel. The appellant complained of a violation of his right to be present and a prohibition of evidence use.

The lower court dismissed the appellant's appeal and confirmed the judgment of the first instance. The appellant requested the Federal Court to overturn the appeal judgment and acquit him of the charge of severe bodily harm.

Considerations

The Federal Court examined whether the lower court had violated the appellant's right to be present by using the statements of witnesses [D.] and [E.] , which were taken without the presence of the appellant or his defense counsel. The court found that the lower court had not examined the question of whether the investigation by the public prosecutor's office was to be considered as having been opened at the time of the questioning of the witnesses.

The Federal Court decided that the case was to be referred back to the lower court to examine whether the appellant's right to be present had been violated and what consequences would result from this in terms of guilt. The court overturned the…