Facts
The Public Prosecutor’s Office of the Canton of Solothurn convicted the appellant by summary penalty order of 22 March 2011 of multiple offences under the Narcotics Act (NarcA) to a fine of CHF 200.--. The appellant filed an objection.
The District Court Judge of Solothurn-Lebern fully acquitted the appellant of the charge of multiple offences under the NarcA on 7 September 2011. The Public Prosecutor’s Office appealed against this decision.
The Higher Court of the Canton of Solothurn dismissed the appellant’s challenge against the examining judge and the court clerk on 8 May 2012 and declared it moot. By judgment of 10 May 2012, it convicted the appellant of multiple offences under the NarcA (Art. 19a para. 1 NarcA) committed between 10 May and 3 August 2009. It refrained from imposing a penalty. For the period from February 2009 to 9 May 2009, it acquitted the appellant due to the statute of limitations having expired.
The Higher Court accused the District Court Judge of arbitrarily establishing the facts and held as proven that the appellant had purchased and consumed cocaine for personal use once a month between 10 May and July 2009. It further held that on 3 August 2009, the appellant had taken steps to purchase cocaine for personal use for CHF 50.--.
The appellant applied by way of an appeal in criminal matters and, subsidiarily, a constitutional appeal for the annulment of the decision of 8 May 2012 and the judgment of 10 May 2012, the confirmation of the District Court Judge’s judgment of 7 September 2011 and the referral of the matter back to the Higher Court for a new determination of the procedural and party costs. It requested that the appeal be granted suspensive effect.
Considerations
The Federal Supreme Court first examined the admissibility of the appeal. It found that the appeal in criminal matters also encompasses complaints regarding constitutional law (Art. 95 FSCA), whereas there was no room for the subsidiary constitutional appeal (Art. 113 FSCA). New applications for taking of evidence by the appellant, such as the obtaining of the administrative files of the motor vehicle control of the Canton of Solothurn or the military procedural files of the DDPS, were dismissed as inadmissible since they were not prompted by the decision of the lower court (Art. 99 para. 1 FSCA, Art. 42 para. 2 FSCA).
Regarding the court clerk’s recusal: The appellant alleged the court clerk [Y.] was biased, claiming that he had made disparaging remarks about the matter in a telephone conversation with his wife. The Federal Supreme Court held that recusal must be assessed objectively and not based on subjective perceptions. Since the challenged court clerk was not involved in the decision-making and the challenged conduct occurred before he began his duties, there was no ground for recusal. Moreover, the lower court was not required to “decontaminate” already completed procedural steps (Art. 60 para. 1 CrimPC). The reference to the impending statute of limitations did not give rise to an appearance of bias, as it is the court’s duty to advance the proceedings. No violation of Art. 30 para. 1 Cst., Art. 32 para. 1 Cst. or Art. 6 para. 1 ECHR was found.
Regarding the Higher Court’s conduct of the proceedings: The appellant complained that the Higher Court had decided on the matter without awaiting the legal force of the interlocutory decision of 8 May 2012. The Federal Supreme Court dismissed this complaint, as appeals against interlocutory decisions have no suspensive effect (Art. 103 para. 1 FSCA). Moreover, the complaint of a violation of Art. 403 para. 1 CrimPC was dismissed, as the lower court had formally correctly dealt with the Public Prosecutor’s Office’s appeal. The Public Prosecutor’s Office had alleged that the first-instance decision was arbitrary, which constituted sufficient grounds. The review of arbitrariness in appellate proceedings was not objectionable, as the lower court was not required to replace the factual findings of the first-instance court with its own, but merely to review them for arbitrariness (Art. 398 para. 4 CrimPC, Art. 97 para. 1 FSCA).
Regarding the conduct of a written appellate procedure: The appellant complained that the Higher Court had dispensed with an oral hearing without sufficient justification, thereby violating its right to a public hearing and pronouncement of judgment (Art. 6 para. 1 ECHR, Art. 30 para. 3 Cst.). The Federal Supreme Court held that appellate proceedings are generally to be conducted orally, but written procedures are permissible in exceptional cases (Art. 406 CrimPC). In the present case, the subject matter of the proceedings had been exclusively offences, and the questions to be examined had been of limited scope. Moreover, the appellant had not claimed…