Rejection of the indictment due to violation of the indictment principle due to insufficient specification of the charges

Facts

On 15 May 1990, the Swiss Federal Prosecutor’s Office opened a judicial police investigation against persons responsible at V. AG on suspicion of an offence against the War Material Act (WMA) in connection with exports of war material to Iraq. On 28 June 1990, the investigation was extended to persons responsible at U. SA. On 18 March 1991, the Federal Council decided to initiate federal criminal proceedings and instructed the Federal Prosecutor’s Office to apply to the competent federal investigating judge for the opening of a preliminary investigation.

On 15 May 1991, the federal investigating judge opened a preliminary investigation against the accused [G.], [M.] and P. On 31 March 1992, the preliminary investigation was extended to the accused [S.] and F. On 30 June 1994, the investigating judge submitted the final report and requested the representative of the Federal Prosecutor’s Office to indict the accused. On 30 August 1994, the representative of the Federal Prosecutor’s Office indicted F., [G.], [M.], P. and [S.] for manufacturing and exporting war material within the meaning of Art. 17 para. 1 lit. a and para. 2 WMA and submitted the indictment, together with the files and an explanatory report, to the Indictment Chamber of the Federal Supreme Court.

The accused, in their defence submissions, requested that the indictment not be admitted and argued that the indictment did not meet the legal requirements, in particular that it violated the indictment principle (Art. 9 CPP) and Art. 6 para. 3 lit. a ECHR. They further requested that the files be referred back to the investigating judge for supplementation of the investigation or to the Federal Prosecutor for improvement of the indictment.

Considerations

The Federal Supreme Court examines, in the indictment admission procedure, whether the indictment complies with the legal provisions and meets the legal requirements of the indictment principle. The indictment has both a delimiting and an informative function: it must enable the determination, in objective and subjective terms, of which specific criminal contributions are alleged against each accused, and the assignment of the evidence to the specific charges. It must also meet the legal requirements, in particular those of Art. 126 FCJA and Art. 6 para. 3 lit. a ECHR.

In the present case, the indictment does not meet these requirements. The description of the facts, with brief references to 21 deliveries of goods to three Iraqi projects, does not reveal which specific criminal contributions are alleged against the individual accused. In particular, there is no explanation of the assignment of the deliveries to the projects and the qualification of the deliveries as war material. Moreover, it is not stated which specific acts or omissions are alleged against each accused.

In subjective terms, the general reference to the administrative and operational positions of the accused and to indications of an arms deal does not meet the requirements. The…