Facts

Facts and procedural history:

The complainant X. visited the marital home in Basel at approximately 12:30 on 9 December 2012 to exercise his visitation rights with regard to his common daughter. Present in the home were his separated wife A., her parents B. and C., and the grandmother. X. was carrying a loaded pistol with 15 rounds and a handbag containing a further 35 rounds. After a telephone call in the bathroom, he took his daughter into the bedroom and fired several shots in the living room at his wife and his in-laws. Due to technical ignition failures, misfires occurred. The father-in-law died at the scene from internal injuries, while the wife and mother-in-law suffered serious leg injuries.

X. was charged with murder, multiple attempted murder, attempted simple assault, criminal damage, multiple threats, coercion, attempted coercion, and offences and contraventions under the Weapons Act. On 26 September 2014, the Basel-Stadt Criminal Court sentenced him to life imprisonment and a fine of CHF 500. X. appealed against this judgment, as did the wife, her brother and daughter, and the mother-in-law. On 27 April 2016, the Appellate Court of the Canton of Basel-Stadt upheld the first-instance conviction on the merits and sentenced X. to 20 years’ imprisonment, taking into account pre-trial detention. X. filed an appeal in criminal matters with the Federal Supreme Court against this judgment.

Complainant’s grounds for appeal:

  • Violation of the right to participate (Art. 147 para. 1 CrimPC) in evidence-taking during the pre-trial proceedings;
  • Violation of the right to confrontation (Art. 6(3)(d) ECHR, Art. 152 para. 3 in conjunction with Art. 149 para. 2 lit. b CrimPC) through indirect confrontation during the main hearing;
  • Admissibility of the evidence obtained during the pre-trial proceedings.

Considerations

1. Waiver of the right to participate:

The Federal Supreme Court confirms that the accused’s right to participate in evidence-taking may also be waived by the defence counsel. A tacit waiver exists where the defence counsel is present during questioning but neither objects to the accused’s absence nor requests his participation. Such a waiver precludes a subsequent challenge on the grounds of a violation of the right to participate, unless there is a blatant breach of defence counsel’s duties. In the present case, the complainant’s defence counsel had stated in several letters that he would attend the questioning sessions, but not the complainant himself. Moreover, the defence counsel waived the complainant’s participation in further questioning sessions without raising any objection. The lower court was therefore entitled to assume a valid waiver that did not violate the principle of good faith (Art. 53 CrimPC).

2. Right to participate in police investigative measures:

Once the investigation has been opened (Art. 309 para. 1 CrimPC) by the public prosecutor’s office, the police may no longer conduct independent investigations. However, simple measures to clarify the facts, in particular informal questioning of victims and witnesses, remain permissible. There is no statutory right to participate in such police measures (Art. 306 para. 2 lit. b CrimPC). In the present case, the initial questioning of the victim-witnesses and other persons took place between 9 and 13 December 2012, i.e. before the formal opening of the investigation. These questioning sessions served to urgently clarify the facts and were justified by the gravity of the offence and the risk of collusion. There was therefore no violation of the right to participate.

3. Indirect confrontation and protection of victims:

The right to confrontation (Art. 6(3)(d) ECHR) requires a balancing of the interests of the defence and the protection of victims. Direct confrontation is not mandatory if the victim would be seriously affected by it. In the present case, the victim-witnesses were indirectly confronted due to the severity of their injuries and the associated psychological strain. The complainant was able to follow the questioning sessions acoustically in an adjacent room and to put questions to the…