Facts
The District Court of Aarau convicted on 10 April 2019 the defendant A. of robbery (Art. 140 SCC. 1 SCC), simple assault (Art. 123 SCC. 1 SCC), qualified simple assault (Art. 123 SCC. 2 para. 2 SCC), multiple violations of the WA (Art. 33 para. 1 lit. a WA), multiple violations of the NarcA (Art. 19 para. 1 and 19a NarcA) and attempted obstruction of an official act (Art. 286 in conjunction with Art. 22 para. 1 SCC) to a total custodial sentence of three years, a fine and a penalty. It also ordered a ban on entering the country for seven years. The private prosecutor B.’s claim for satisfaction of 5,000 Swiss francs was upheld, while other civil claims were referred to the civil courts.
Both A. and B. as well as the public prosecutor’s office appealed. The Higher Court of the Canton of Aargau convicted A. on 22 October 2020 of attempted grievous bodily harm (Art. 122 in conjunction with Art. 22 para. 1 SCC) and otherwise confirmed the convictions. The sentence was increased to 4½ years’ imprisonment. B. was awarded satisfaction of 5,000 Swiss francs.
A. filed a criminal appeal with the Federal Supreme Court and sought acquittal from the charges of robbery and attempted grievous bodily harm as well as a reduction of the custodial sentence. He also sought the waiver of the ban on entering the country. The Federal Supreme Court quashed the conviction for violation of the accusatory principle (Art. 9 CrimPC) and remitted the matter for reassessment to the lower court. In the remittal proceedings, B. again sought supplementation of the indictment with the charge of attempted grievous bodily harm, which was not properly addressed by the District Court. The public prosecutor’s office did not supplement the indictment, and no explicit partial dismissal order was issued.
Considerations
The Federal Supreme Court first examined the admissibility of an indictment supplementation following a remittal decision. It confirmed that a change or supplementation of the indictment under Art. 333 para. 1 CrimPC is also possible in remittal proceedings, provided that this is compatible with the prohibition of reformatio in peius (Art. 391 para. 2 CrimPC). An indictment extension under Art. 333 para. 2 CrimPC, however, is no longer permissible in appellate proceedings, as this would breach the principle of double jurisdiction.
The court placed particular emphasis on the rights of the private prosecutor. The latter may, independently of civil claims, demand the prosecution and punishment of the accused (Art. 119 para. 2 lit. a CrimPC) and has the right to challenge an insufficient indictment by applying for supplementation. The court stressed that the public prosecutor’s office may not arbitrarily refuse an indictment supplementation but must proceed according to the principle “in dubio pro duriore”. This means that, in case of doubt, the stricter legal qualification must be chosen to avoid unjustified acquittals.
The Federal Supreme Court also clarified the requirements for an explicit partial dismissal order. Such an order is necessary when only part of the acts alleged by the victim is prosecuted, in order to safeguard the private prosecutor’s rights. An implicit partial dismissal that is not declared as such does not meet these requirements. The blocking effect of the…