Facts
The Federal Supreme Court had to assess whether an expert opinion is admissible despite a violation of procedural regulations in the information gathering process.
The appellant X. was convicted by the High Court of the Canton of Zurich for various offenses and ordered to be placed in preventive detention pursuant to Art. 64 para. 1 of the Swiss Criminal Code. X. filed a criminal law appeal against this judgment.
The Federal Supreme Court set aside the High Court's judgment and instructed the High Court to obtain a new, independent expert opinion on the treatability and possibilities of execution of an inpatient therapeutic measure.
For this opinion, the expert independently obtained files from the Psychiatric-Psychological Service (PPD) without applying for this with the court. The High Court rejected the appellant's request to include these files.
Considerations
The Federal Supreme Court states that the expert would have been obliged under Art. 185 para. 3 of the Swiss Criminal Procedure Code to apply for the supplementation of the files with the court. Although he failed to do so, this violation of an administrative regulation does not have any consequences for the admissibility of the expert opinion.
However, the procedure of the expert as well as the decision of the High Court not to submit the PPD's case documentation violates the appellant's right to be heard. In order for the lower court and the parties to be able to review the…