Refusal of violation of art. 249 FCJA in the assessment of evidence

Facts

The Federal Court rendered a judgment in the case of the Public Prosecutor's Office of the Canton of Zurich against Y. and O. On October 10, 1986, the Cantonal Court of Zurich sentenced Y. and O. to prison terms for offenses under the Narcotics Act, based on an intercepted telephone recording. The Court of Cassation of the Canton of Zurich annulled this judgment under § 104d al. 3 StPO/ZH, which prohibits the use of evidence obtained by chance during a telephone tap. The Public Prosecutor's Office of the Canton of Zurich filed a nullity complaint with the Federal Court, alleging a violation of art. 249 FCJA, which provides for the principle of free assessment of evidence.

The facts of the case are as follows: Y. and O. were convicted of offenses under the Narcotics Act due to an intercepted telephone recording. The Cantonal Court of Zurich based its decision on this recording, but the Court of Cassation of the Canton of Zurich annulled this judgment under § 104d al. 3 StPO/ZH. The Public Prosecutor's Office of the Canton of Zurich filed a nullity complaint with the Federal Court, alleging a violation of art. 249 FCJA.

Considerations

The Federal Court examined the question of whether the principle of free assessment of evidence, provided for in art. 249 FCJA, had been violated. The Court considered that this principle means that the criminal justice authorities are free to assess the evidence without being bound by rules of evidence. However, this principle does not preclude restrictions on evidence that result from the protection of public or private interests.

The Court then examined the cantonal provision in question, § 104d al. 3 StPO/ZH, which prohibits the use of evidence…