Decision of the Court of Cassation on the appeal for nullity by the public prosecutor's office against a default judgment

Facts

In this case, the defendant B. was convicted in absentia (default proceedings). According to the cantonal criminal procedure law, the convicted person can demand the annulment of the default judgment and the conduct of an ordinary court trial within 60 days of becoming aware of the judgment. The Public Prosecutor's Office of Graubünden subsequently filed an appeal for nullity against the judgment of the Cantonal Court, insofar as it concerned B.

Furthermore, the Public Prosecutor's Office contested parts of the judgment in which the Cantonal Court had refrained from convicting the appellants, as no indictment had been filed on these points.

Considerations

The Court of Cassation decided that the Public Prosecutor's Office is indeed entitled to file an appeal for nullity against the default judgment. The convicted person himself can only file an appeal for nullity after submitting an application for retrial and conducting an ordinary procedure. However, the public prosecutor is in a different situation, as he cannot apply for a retrial. For him, the judgment has the character of a final judgment, which he can challenge.

Insofar as the Public Prosecutor's Office, however, contests the judgment on points where the Cantonal Court refrained from conviction because no indictment had been filed there, this cannot be entered upon. The question of whether the…