Facts

The appellant [X.] was convicted by the District Court of Zurich on 12 November 2013 of multiple rape (Art. 190 para. 1 SCC) and sexual harassment (Art. 198 para. 2 SCC) to a custodial sentence of three years, of which 18 months were suspended and 18 months were served, with 356 days of pre-trial detention credited. The appellant appealed against this judgment. The Zurich Public Prosecutor’s Office filed a cross-appeal.

The Higher Court of the Canton of Zurich, 2nd Criminal Chamber also convicted the appellant in its judgment of 26 February 2015 of multiple rape and sexual harassment. It imposed a custodial sentence of 32 months, of which 22 months were suspended with a probationary period of two years, and 10 months were served, with 356 days of pre-trial detention credited. It also ordered the appellant to pay compensation of CHF 10,000 to the victim [A.] and established the principle of his liability for damages.

The appellant was accused of having raped the victim [A.] in November 2011 and on 10 January 2012 and of having sexually harassed her on 8 February 2012. The victim claimed that the appellant had forced her to have sexual intercourse by threatening to tell her parents about consensual sexual intercourse for payment of CHF 200 in August 2011 and about her consumption of tobacco and cannabis. The appellant denied all allegations and claimed that he was unable to achieve an erection and had not ejaculated for years. He also denied any sexual contact with the victim.

The appellant unsuccessfully applied in both instances for the victim to be examined as a witness and for a psychological expert report to be obtained. The Higher Court rejected these applications on the grounds that the victim had already been examined three times, including once by audiovisual means, and her statements were considered credible. In addition, material evidence such as the seizure of underwear with sperm and DNA traces and the evaluation of the appellant’s mobile phone, which confirmed his contacts with the victim, was taken into account.

Considerations

The Federal Supreme Court examined the convicted person’s appeal for violations of procedural rights, in particular the principle of immediacy (Art. 343 para. 3 CrimPC) and the obligation to conduct a full taking of evidence. The appellant complained that the Higher Court had wrongly rejected his applications for a further examination of the victim as a witness and for the obtaining of a psychological expert report.

The Federal Supreme Court first confirmed that the principle of immediacy under Swiss criminal procedure law (CrimPC) is limited and that a further taking of evidence is only required under certain conditions. According to Art. 343 para. 3 CrimPC, the court must take evidence again in the first-instance proceedings if direct knowledge of the evidence appears necessary for the rendering of the judgment. This is particularly the case if the probative value depends on the immediate impression of the witness statement, for example in a ‘he-said-she-said’ situation. However, a further examination is not necessary merely because non-verbal behaviour such as facial expressions or gestures must be interpreted. Rather, the decisive factor is whether the judgment depends crucially on the witness’s behaviour when giving evidence.

In the present case, in addition to the contradictory statements of the parties, there was material evidence supporting the credibility of the victim. The seizure of underwear with sperm and DNA traces and the evaluation of the appellant’s mobile phone refuted his claim that he had had no contact with the victim. In addition, the victim had already been examined three times, including by audiovisual means. The Higher Court considered her statements to be credible and saw no need for a further examination. The Federal Supreme Court found that the Higher Court had not exceeded its discretion, as direct knowledge of the witness was not crucial…