Facts
In this case, [G.], [S.] and [T.] were accused of participating in the preparation of a cocaine sales transaction with an anonymous foreign informant operating under the alias "Axel". The Criminal Division of the St. Gallen Cantonal Court acquitted [G.] and [S.] of the charge of serious violation of the Narcotics Act and [T.] of the charge of complicity.
The Public Prosecutor's Office of the Canton of St. Gallen filed a federal nullity appeal against these acquittals. The Federal Supreme Court partially upheld the appeal and remanded the case for re-evaluation by the lower court.
Considerations
The Federal Supreme Court stated that the informant "Axel" had acted as an "agent provocateur" and incited the appellees to commit the offenses. Such use of an informant as an initiator or instigator is unlawful and violates the principle of proportionality as well as the maxims of fairness and due process.
However, the violation can only be attributed to the competent criminal prosecution authorities if the informant acted in his capacity as an undercover police officer. If "Axel" had acted as an informant for the Republic of Austria without the knowledge and consent of the Swiss authorities, his misconduct could not be attributed to the Swiss state.
The Federal Supreme Court therefore remanded the case to the lower court to determine whether and to what extent the informant "Axel" had acted with the knowledge and consent of…