Amendment of the indictment pursuant to Art. 333 para. 1 CrimPC: No application when amendment occurs within the charged offense

Facts

Parties: Appellant: Public Prosecutor's Office of the Canton of Zurich; Respondent 1: A.; Respondent 2: C.

Facts: On June 30, 2017, A. caused a serious accident in which G., the pregnant wife of C., died. A. was indicted by the public prosecutor for negligent homicide. The District Court of Bülach and the Higher Court of the Canton of Zurich acquitted A. The public prosecutor appealed against the acquittal and applied for a referral of the indictment back to the public prosecutor pursuant to Art. 333 para. 1 CrimPC.

Main issue: Can the indictment be amended pursuant to Art. 333 para. 1 CrimPC if the amendment occurs within the charged offense?

Considerations

The Federal Supreme Court states that Art. 333 para. 1 CrimPC only applies if the facts described in the indictment could constitute a different offense. The provision is not applicable if the indictment is to be amended within the charged offense. The court is bound by the facts stated in the indictment (principle of immutability, Art. 350 para. 1 CrimPC). Amending the indictment within the same offense would violate the principle of immutability and allow the court to take over the role of the prosecution, which is not permissible.

The Federal Supreme Court emphasizes that the application of Art. 333 para. 1 CrimPC is only possible within narrow limits to prevent unjustified acquittals. Application within the same offense would exceed the exceptional nature of the provision and undermine the principle of immutability.…