Facts
The complainant A. was acquitted by the District Court of Dietikon on 31 August 2020 of the charge of gross violation of traffic regulations and compensated with Fr. 200.– for unlawfully suffered detention.
The Winterthur/Unterland Public Prosecutor’s Office appealed against this judgment. On 26 October 2021, the Higher Court of the Canton of Zurich found A. guilty of gross violation of traffic regulations and sentenced him to a suspended custodial sentence of twelve months, taking into account the time already served in detention.
The Higher Court based its decision on the statements of the co-defendants B.B. and C.B., which were made in delegated police and public prosecutor’s interviews. These interviews took place without the presence of the complainant or his defence counsel, even though the proceedings against all three defendants were still being conducted jointly. The lower court considered the co-defendants’ statements as evidence of the complainant’s consent to the creation of a video recording documenting the incident. This consent rendered the video recording admissible and served as a central piece of evidence for the conviction.
The complainant argued before the Federal Supreme Court that the statements of the co-defendants were inadmissible due to the violation of his right to participate pursuant to Art. 147 para. 1 CrimPC. The lower court had incorrectly assumed that subsequent confrontation during the main hearing could remedy the violation of the right to participate. Moreover, the lower court had cited the possibility of a separation of proceedings as justification for the lack of participation, even though the proceedings were still being conducted jointly at the time of the interviews.
Considerations
The Federal Supreme Court first examined the scope of the right to participate pursuant to Art. 147 para. 1 CrimPC, which grants the parties the right to be present at evidence-taking by the public prosecutor and the courts and to ask questions. This right is an emanation of the right to be heard (Art. 107 para. 1 lit. b CrimPC) and may only be restricted in cases provided for by law. Pursuant to Art. 147 para. 4 CrimPC, evidence obtained in violation of this right to participate may not be used to the detriment of the party who was not present.
The Federal Supreme Court emphasised that the right to participate under Art. 147 CrimPC goes beyond the confrontation right under Art. 6 para. 3 lit. d ECHR. While the confrontation right only requires a single opportunity to confront witnesses for the prosecution, Art. 147 CrimPC grants comprehensive participation and questioning rights in all evidence-taking procedures. A subsequent confrontation cannot remedy a violation of the right to participate, as this would contradict the clear wording and the legislative intent to strengthen the right to participate as a counterbalance to the strong position of the public prosecutor in the pre-trial stage.
The lower court had argued that the statements of the co-defendants had become admissible through the subsequent confrontation during the main hearing. The Federal Supreme Court rejected this argument and clarified that the admissibility of an interview conducted in violation of the right to participate cannot be established…