Facts
On 19 January 2012, the accused committed a burglary with B. in the apartment of C., aged 87, threatening her with a knife to obtain the PIN code of her bank card. He stole 1,500 francs, jewellery and the card, then made withdrawals totalling 5,000 francs. The jewellery was sold the same day for 490 francs.
On 18 February 2012, the accused, acting with D., broke into the apartment of A., aged 81, to rob her. He threatened her with a knife, tied her up, gagged her and left her in a bathtub, endangering her life (risk of cerebral anoxia and death). The assault lasted 45 minutes.
The Criminal Court of the Canton of Geneva convicted the accused on 6 December 2013 to 13 years’ imprisonment for attempted murder, aggravated robbery, theft, handling and other offences. The Criminal Appeals and Revision Chamber of the Court of Justice of the Canton of Geneva quashed this judgment on 28 August 2014, upholding only aggravated robbery and confirming the 13-year sentence. The accused and the Public Prosecutor’s Office appealed to the Federal Supreme Court.
On 17 February 2015, the cantonal court informed the parties and the Federal Supreme Court that an assessor judge who had participated in the judgment of 28 August 2014 no longer met the eligibility requirements due to exceeding the age limit. The accused applied for revision of this judgment on 27 March 2015, seeking its annulment and a new trial. The President of the court suspended the federal proceedings and ordered the revision. On 27 July 2015, the cantonal court quashed its first judgment and remitted the case for a new hearing. In a new judgment of 18 November 2015, it sentenced the accused to 12 years’ imprisonment for attempted murder and aggravated robbery, applying a more severe legal qualification than in the first judgment. The accused filed an appeal in criminal matters to the Federal Supreme Court, seeking annulment of the judgment and acquittal for attempted murder.
Considerations
The Federal Supreme Court first examines the issue of the regularity of the composition of the cantonal court in the judgment of 28 August 2014. It notes that this defect, discovered after federal appeals were filed, does not constitute an automatic nullity but a ground for annulment. As the parties were unable to raise this objection before the Federal Supreme Court, a cantonal revision procedure is required. The Federal Supreme Court admits an analogous application of Art. 60 para. 3 CrimPC, which refers to the provisions on revision (Arts. 410 et seq. CrimPC), for defects in the composition of the court discovered subsequently. This solution is justified by the absence of an express provision in the CrimPC and by the need to fill an authentic lacuna. The principle of good faith requires the parties to apply for revision without delay.
The Federal Supreme Court then recalls that revision is a subsidiary remedy, but that where the ground for revision arises during a federal criminal appeal, the cantonal revision procedure takes precedence. The subsidiary nature of revision is to be understood in relation to ordinary cantonal remedies, not in relation to the federal appeal. The Federal Supreme Court emphasises that this solution avoids ruling on an appeal where the judgment under appeal might be quashed for a defect in composition.
The Federal Supreme Court then examines the application of the prohibition of reformatio in pejus (Art. 391 para. 2 CrimPC) in revision proceedings. It recalls that this prohibition is intended to protect the convicted person who has filed an appeal in their favour, by preventing any aggravation of their situation, whether in terms of the sentence or the legal qualification. Doctrine and case law recognise that this prohibition applies in revision proceedings, including where the remedy has a cassatory effect (annulment and remittal). The Federal Supreme Court considers that…