Facts

The complainant X. was convicted by the Regional Court of Bern-Mittelland on 29 November 2016 of defamation against his sister A. The judgment imposed an unconditional fine of 16 daily rates of CHF 90 each and compensation of CHF 1,000 in favour of A. X. appealed against this judgment.

The Higher Court of the Canton of Bern upheld the conviction in a judgment of 13 November 2017, reduced the penalty to a suspended fine of 16 daily rates of CHF 90 each and the compensation to CHF 500. The written reasoned judgment was served on X. or his counsel on 18 January 2018.

On 19 December 2017, X. filed an appeal in criminal matters with summary grounds and, among other things, requested suspensive effect. By order of 25 January 2018, the President of the Criminal Division of the Federal Supreme Court did not grant the request for suspensive effect. On 19 February 2018, X. submitted a further appeal brief in which he sought the quashing of the appellate judgment and the termination of the proceedings due to a violation of Art. 6 ECHR. He also filed recusal requests against the judges involved in the appellate judgment and against the Federal Supreme Court judges Yves Rüedi and Monique Jametti.

The Federal Supreme Court dismissed the appeal insofar as it was admissible.

Considerations

The complainant alleged a violation of the right to an independent and impartial court (Art. 6 ECHR) on the grounds that the public prosecutor’s office was not present at the main hearings in the first and second instances. He relied on judgments of the ECtHR in Russian proceedings in which the court, in the absence of the public prosecutor’s office, had taken over its role and thus violated the adversarial principle. In those cases, the ECtHR had found a violation of Art. 6 ECHR because the court had maintained the indictment and taken evidence even though the public prosecutor’s office could have withdrawn the indictment.

The Federal Supreme Court explained that the Swiss Criminal Procedure Code (CrimPC) is fundamentally different from Russian law. Under Swiss law, it is the public prosecutor’s office that brings the indictment (Arts. 324 et seq. CrimPC), while the court is bound by the facts described in the indictment (Art. 350 para. 1 CrimPC). The indictment defines the subject matter of the proceedings and serves to protect the rights of the defence. Moreover, under the CrimPC, the court plays an active role in taking evidence regardless of the presence of the public prosecutor’s office. The court must question the accused and witnesses ex officio (Art. 341 para. 3 CrimPC) and take new or incomplete evidence (Arts. 343 para. 1 and 2, 389 paras. 2 and 3 CrimPC).

The presence of the public prosecutor’s office in Switzerland is mandatory only in certain cases, in particular if it requests a custodial sentence of more than one year or a measure involving deprivation of liberty (Art. 337 para. 3 CrimPC). Otherwise, the public prosecutor’s office is free to submit written applications or appear in person before the court (Art. 337 para. 1 CrimPC). The indictment may no longer be withdrawn or amended once the judicial taking of evidence has begun (Art. 340 para. 1 lit. b CrimPC), which serves to…