Facts
The case concerns a defendant, B., who was convicted by the Lenzburg district court for sexual acts with a minor and a violation of the Narcotics Act. The defendant appealed the judgment, requesting to be acquitted. The Lenzburg-Aarau public prosecutor's office filed a joint appeal, requesting a more severe sentence. The Argovie cantonal appeal court scheduled the appeal hearing for June 9, 2023. The public prosecutor's office requested a postponement of the hearing due to the absence of the prosecutor in charge and their replacement, but this request was rejected. The hearing took place without the presence of the public prosecutor's office, and the court considered the joint appeal to be withdrawn pursuant to Article 407 paragraph 1 letter a of the Swiss CrimPC (CrimPC). The court also imposed a procedural fine on the absent prosecutor.
The prosecutor lodged an appeal against this decision, arguing that the procedural fine was unjustified and that the joint appeal should not have been considered withdrawn. The public prosecutor's office also lodged an appeal, requesting the annulment of the decision and the referral of the case to the Argovie cantonal appeal court for a new decision.
Considerations
Introduction
This judgment concerns the unexcused absence of the public prosecutor's office from the appeal hearing and the consequences that follow. The Federal Court must examine whether the cantonal appeal court violated federal law by considering the joint appeal to be withdrawn and by imposing a procedural fine on the absent prosecutor.
Representation of the public prosecutor's office
The Federal Court recalls that the public prosecutor's office is an authority that can be represented by different prosecutors. Article 405 paragraph 3 letter b of the CrimPC provides that the public prosecutor's office must be summoned to the appeal hearing if it has filed an appeal or a joint appeal. However, it is not necessary for the prosecutor in charge to be present at the hearing, as the public prosecutor's office can be represented by another prosecutor.
Consequences of unexcused absence
The Federal Court examines the consequences of the unexcused absence of the public prosecutor's office…