Facts

The appellant [X.M.] was found guilty by the Cantonal Court of Bern of sexual acts with a child to the detriment of his son [A.M.] . [X.M.] filed a criminal appeal against this judgment. The main issue was whether the interrogations of [A.M.] and his brother [B.M.] from November 2003, in which the appellant could not participate, were admissible as evidence.

Considerations

The Federal Supreme Court set aside the judgment of the Cantonal Court and remanded the case for a new assessment. It justified this as follows:
  • The appellant had no opportunity to participate in the two initial interrogations of November 2003 and to ask questions. Although [A.M.] and [B.M.] were questioned again later when the appellant was present, by that time the two witnesses could only vaguely remember the incidents and essentially only confirmed their previous statements. This deprived the appellant of the opportunity to effectively exercise his right of defense.
  • The cantonal authorities are responsible for the fact that the witnesses could only vaguely remember at the…