Facts
The defendant [X.] made contact on August 17, 2005, under the pseudonym "Jerôme" over the Internet in the Bluewin chat room "kidstalk" with a person with the pseudonym "manuela_13". It turned out that behind this pseudonym were police officers who were conducting a covert investigation. The defendant made written statements with sexual references in the chat and arranged a meeting with the supposed child. When he appeared for the meeting, he was arrested by the police and a criminal investigation was opened on suspicion of (unsuccessful) attempted sexual acts with children.
The High Court of the Canton of Zurich acquitted the defendant because the findings had been obtained through a covert investigation that did not meet the requirements of the Federal Act on Covert Investigation (ACI). The Public Prosecutor's Office of the Canton of Zurich filed a complaint in criminal matters with the request to overturn the judgment of the High Court and to refer the matter back to the lower court for a new decision.
Considerations
The Federal Court had to examine whether the covert investigation on the Internet by the police met the requirements of the ACI and whether the findings obtained through this investigation were admissible. The court came to the conclusion that the covert investigation prior to a criminal proceeding does not require judicial approval, but the appointment of the investigator requires such approval.
The court found that the findings obtained through…