Facts
On August 14, 1957, Theresia Leier, who was then engaged to Ernst Kessler and has since married him, filed a defamation lawsuit against Michaela Boltshauser with the District Court of Weinfelden. To prove the conduct attributed to the defendant, the plaintiff relied on the testimony of Kessler. The defendant rejected this witness based on § 258 para. 1 no. 1 of the Code of Civil Procedure of the Canton of Thurgau, according to which fiancés and spouses of the witness may be excluded from testifying at the request of the opposing party.
The Weinfelden Court Commission granted the recusal request, refrained from hearing Kessler, and dismissed the lawsuit. The High Court of the Canton of Thurgau confirmed this decision. The plaintiff then filed a nullity appeal with the Court of Cassation of the Federal Court.
Considerations
The Court of Cassation states that in federal criminal matters, which are to be judged by cantonal authorities, the procedure is governed by cantonal law, unless federal law provides otherwise, in accordance with Art. 247 para. 3 of the Federal Criminal Procedure Act and Art. 365 para. 1 of the Criminal Code. However, this does not mean that the principle of free evaluation of evidence enshrined in Art. 249 of the Federal Criminal Procedure Act does not apply.
The Court of Cassation clarifies that cantonal regulations that exclude certain persons from testifying due to bias violate the principle of free evaluation of evidence under Art. 249 of the Federal Criminal Procedure Act. This principle requires the deciding authority to examine and assess the persuasive power of the individual means of proof on a case-by-case basis based on the specific circumstances.
In contrast, Art. 249 of the Federal Criminal Procedure Act does not affect evidentiary restrictions that arise from the fact that cantonal law, for reasons other than the evaluation of evidence, does not allow or only allows certain means of proof…