Facts

Parties and procedural history:

The complainant, a fiduciary, was convicted by the District Court of Bülach on 23 October 2013 of aggravated money laundering (Art. 305bis nos. 1 and 2 lit. c SCC), theft (Art. 139 SCC. 1 SCC), fraud (Art. 146 para. 1 SCC), multiple forgery of documents (Art. 251 SCC. 1 SCC), obtaining false certification by deception (Art. 253 para. 1 SCC) and aiding and abetting tax fraud (under cantonal and federal law). On 4 September 2020, the Higher Court of the Canton of Zurich largely upheld the first-instance convictions but increased the custodial sentence to five years and the suspended fine to 300 day-fines. It also ordered the complainant to pay compensation of CHF 265,136.35 to the state.

Summary of the facts:

The complainant was accused of managing and appropriating funds from drug trafficking on behalf of third parties between 2007 and 2010. Specifically, the allegations included:

  • Accepting cash from drug trafficking for [C.] in a safety deposit box in Vaduz and later appropriating CHF 497,000 (charge no. I).
  • Creating fictitious invoices and receipts for [E.] to enable tax evasion (charge no. II).
  • Submitting a false commercial register application to remove [D.] as a director of [G. AG] (charge no. III).
  • Creating fictitious accounting records and tax returns for companies involved in drug trafficking (charge nos. IV A–C).
  • Hiring [K.] as a purported IT employee in her sole proprietorship, despite his income deriving from drug trafficking (charge no. VI).
  • Unlawfully claiming sick pay despite partial capacity to work (charge no. VII).

The complainant appealed the Higher Court’s judgment with a criminal appeal, alleging inter alia violations of the right to a speedy trial, the right to be heard, the impartiality of the court, evidence exclusion rules and the admissibility of statements obtained through witness tampering. She also contested the use of secretly recorded conversations with [D.] .

Considerations

1. Procedural objections and inadmissibility of the appeal:

The Federal Supreme Court did not entertain the appeal insofar as the complainant challenged the amount of compensation for court-appointed defence counsel. The determination of such compensation concerns solely the interests of the defence counsel, not those of the complainant herself. She therefore lacked standing to raise this objection (Art. 135 para. 3 CrimPC, 6B_349/2020 para. 4).

2. Duty to state reasons and arbitrariness:

An appeal must set out the relief sought and the grounds for it, with reference to the evidence (Art. 42 paras. 1 and 2 FSCA). Mere references to prior submissions or the case file are insufficient. Where the complainant relied on her submissions before the lower court, the Federal Supreme Court did not entertain the appeal (140 III 115 para. 2).

3. Violation of the right to an impartial court:

The complainant argued that the substitute judge had been appointed only two weeks before the main hearing, resulting in insufficient time for familiarisation. She also alleged bias on the part of the lower court, which had assumed her criminal conduct and ignored exculpatory circumstances. The Federal Supreme Court dismissed this objection. A two-week familiarisation period is not inherently inadequate. Moreover, procedural errors alone do not give rise to an appearance of bias unless they are particularly gross or repeated (Art. 56 lit. f CrimPC, 143 IV 69 para. 3.2).

4. Violation of the right to a speedy trial:

The complainant complained of the excessive duration of over ten years, which she attributed to the suspension of the appellate proceedings pending the resolution of her criminal complaint against the prosecutor. While the Federal Supreme Court acknowledged a serious violation of the right to a speedy trial, it did not consider it so gross as to warrant immediate dismissal of the proceedings. The delay could not be attributed solely to the complainant, as the prosecutor had granted the authorisation for criminal prosecution against the prosecutor (Art. 5 para. 1 CrimPC, 143 IV 373 para. 1.3.1).

5. Violation of the prohibition of double jeopardy (ne bis in idem):

The complainant argued that the dismissal of parallel proceedings against [D.] for obtaining false certification by deception (charge no. III) created a procedural bar. The Federal Supreme Court rejected this argument. At the time of the dismissal, there had been no final acquittal or conviction. Moreover, the dismissal was permissible for reasons of procedural economy (Art. 8 para. 2 lit. c CrimPC, 148 IV 1 para. 3.5.1).

6. Evidence exclusion rules and witness tampering:

The complainant objected to the use of statements made by [D.] , which she claimed had been obtained under impermissible pressure. The Federal Supreme Court set aside the convictions for theft (charge no. I) and money laundering (charge nos. IV A–C) because the lower…