Facts
The Criminal Court of Schwyz sentenced [A.] on 27 January 2021 to a partially suspended prison sentence of 36 months for multiple cases of embezzlement, multiple cases of disloyal management of business, forgery of documents, and multiple cases of procuring a false certification. [A.] appealed, but the Cantonal Court of Schwyz discontinued the appeal proceedings because [A.] and his defense counsel failed to appear at the appeal hearing without excuse. [A.] filed a complaint in criminal matters and requested that the decision of the Cantonal Court of Schwyz be set aside and the proceedings be remanded to that court.
The cantonal files were obtained and the Cantonal Court of Schwyz waived its right to comment. The private plaintiff requested that the complaint be dismissed at the expense of the complainant.
Considerations
The Federal Court accepted the complaint because it was filed in a timely and proper manner. The complainant argued that the discontinuation of the appeal proceedings due to withdrawal of the appeal was contrary to federal law.
The Federal Court stated that the fiction of withdrawal under Art. 407 Abs. 1 lit. a CrimPC does not apply if the necessary defense counsel fails to appear at the appeal hearing. Since the complainant was defended by a privately appointed lawyer and a case of necessary defense existed, the lower court would have been required to postpone the appeal hearing and summon the parties again.
The Federal Court found that the complaint was well-founded and that the matter was to be remanded to the lower court for the conduct of the…