Dismissal of the public prosecutor's appeal against the release of the accused by the court of appeal

Facts

On 22 April 2013, the Criminal Court of the Sarine District sentenced the accused X. to an unconditional custodial sentence of 11 months and ordered a three-month preventive detention for his security. X. appealed against the judgment.

By order of 29 July 2013, the President of the Criminal Appeals Court of the Canton of Fribourg ordered the release of X. from preventive detention on the same day. She required him to report to the police station of his place of residence once a week.

The public prosecutor filed a criminal appeal against this order, requesting the revocation of X.'s release and the imposition of preventive detention.

Considerations

The Federal Court dismissed the public prosecutor's appeal. It stated that the public prosecutor is generally entitled to appeal against an unfavourable decision of the coercive measures court in custody matters to the appellate court. The public prosecutor must also be able to effectively exercise this right of appeal.

In the present case, however, it was a criminal appeal against a release from custody by the presiding judge of the court of appeal. Unlike the challenge of a release from custody decision by the coercive measures court or the court of first instance, a criminal appeal against a release from custody by the presiding judge of the court of appeal generally cannot prevent the immediate execution of the release.

The Federal Court further stated that the case law on the public prosecutor's right of appeal under the Code of Criminal Procedure is not…