Facts

Parties and procedural history:

The complainant A. was charged by the Zurich-Sihl Public Prosecutor’s Office with sexual coercion. He was accused of inviting the victim B., together with a co-defendant, to a joint dinner and administering sleeping tablets to her in order to commit sexual acts against her. After the victim had fallen asleep, [A.] had committed sexual acts against her by inserting at least one finger or an unknown object into her vagina (indictment of 31 March 2017).

The Zurich District Court convicted [A.] of sexual coercion and sentenced him to a custodial sentence of four years. It also found that [A.] and the co-defendant were, in principle, liable to pay damages to the victim [B.] and jointly ordered them to pay compensation of 12,000 Swiss francs (judgment of 13 November 2017 and order of 6 June 2018).

[A.] filed an appeal and, among other things, sought an acquittal. The Public Prosecutor’s Office filed a cross-appeal requesting confirmation of the first-instance conviction and an increase in the custodial sentence to four and a half years. The Higher Court of the Canton of Zurich invited the Public Prosecutor’s Office to supplement the indictment. With an amended indictment dated 15 February 2019, the Public Prosecutor’s Office additionally charged [A.] with having struck the victim in bed, pulled her hair and instructed her to kiss the co-defendant and perform oral sex on her, which was considered attempted sexual coercion.

The Higher Court of the Canton of Zurich convicted [A.] of both sexual coercion and attempted sexual coercion and imposed a custodial sentence of four years (judgment of 22 October 2019). [A.] then filed a criminal appeal and sought either a full acquittal or a referral of the matter back to the lower court for further clarification. He requested that the civil claims of the private plaintiff be referred to the civil courts and that he be awarded compensation and damages in the criminal proceedings.

Considerations

Legal basis and subject matter of the proceedings:

The Federal Supreme Court examined whether the Higher Court of the Canton of Zurich was entitled to expand the subject matter of the proceedings in the appeal proceedings by supplementing the indictment with new factual allegations and to enter an additional conviction for attempted sexual coercion. The focus was on the provisions of the Criminal Procedure Code (CrimPC) regarding the limits of indictment amendments and expansions, as well as the prohibition of reformatio in pejus.

Limits of indictment supplementation under Art. 329 and 333 CrimPC:

The Federal Supreme Court clarified that the subject matter of the dispute in appeal proceedings is fundamentally limited to the facts addressed in the first-instance judgment (Art. 404 para. 1 CrimPC). An expansion of the subject matter of the proceedings is only permissible in exceptional cases, in particular if the indictment does not meet the legal requirements or if evidence needs to be supplemented (Art. 329 para. 1 lit. a and para. 2 CrimPC). However, the indictment supplementation must not result in previously unprosecuted acts being included in the proceedings. Art. 329 para. 2 CrimPC only permits supplements within the already defined subject matter of the proceedings, which was not the case here.

Art. 333 para. 1 CrimPC also did not provide a basis for including new factual allegations. While this provision allows the indictment to be referred back to the Public Prosecutor’s Office for amendment or supplementation if the described facts could constitute a different or additional criminal offence, it is not intended to cover previously unprosecuted acts. Rather, it is intended to ensure that the indictment meets the legal requirements or allows for a reclassification of the offence.

Inapplicability of Art. 333 para. 2 CrimPC in appeal proceedings:

Under Art. 333 para. 2 CrimPC, the court may permit the Public Prosecutor’s Office to expand the indictment if new criminal offences become known during the main proceedings. This exception to the immutability principle (binding to the facts described in the indictment) serves procedural economy and is intended to allow newly discovered criminal offences to be included in the ongoing proceedings. However,…