Facts

On 11 July 2019, the prisoner B. was transferred from the U. prison (JVA) to another facility. The prison officer A. was part of a team of six staff members who handed B. over to the Aargau cantonal police. During the transport, B. spat at A. and adopted a fighting stance, whereupon the team resorted to physical coercion. B. was brought to the ground and a spit hood was placed on him. A. was accused of having delivered two kicks to B., who was on the ground, as well as two punches to B.’s head and face – including a punch to the right eye and another after B. was already motionless and unable to resist. In addition, A. allegedly pushed his finger into B.’s right eye, causing a bruise to the eyeball.

The Lenzburg-Aarau Public Prosecutor’s Office convicted A. by summary penalty order of 10 September 2020 of abuse of authority and simple assault to a suspended fine of 80 daily rates of 210 CHF each and a fine of 4,200 CHF. The District Court of Lenzburg partially acquitted A. on 13 July 2021: it upheld the conviction for abuse of authority (with regard to the two kicks and the first punch), but quashed the charges of simple assault and abuse of authority (concerning the finger in the eye and the second punch). The Higher Court of the Canton of Aargau confirmed by judgment of 13 September 2022 the conviction for abuse of authority (including all four acts) and ordered A. to pay B. compensation of 1,000 CHF.

A. filed a criminal appeal with the Federal Supreme Court and sought the quashing of the conviction and referral of the civil claim to the civil courts. The Federal Supreme Court dismissed the appeal.

Considerations

The Federal Supreme Court first examined whether the Lenzburg-Aarau Public Prosecutor’s Office was entitled to obtain the video recordings from the U. prison of 11 July 2019 by means of procedural coercive measures (request for surrender or seizure). It found that the U. prison, as a cantonal authority within the meaning of Art. 44 CrimPC, is an authority obliged to provide national legal assistance. The rules on national legal assistance (Art. 43 et seq. CrimPC) take precedence as special legislation over the provisions on seizure and surrender. Therefore, the requesting prosecuting authority has no procedural coercive measures available against the requested authority. A seizure or order for surrender would have been inadmissible even in the event of a risk of collusion or conflict of interest.

Instead, the Public Prosecutor’s Office should have submitted a formal request for legal assistance to the U. prison. In the event of a refusal by the authority, it could have applied to the court competent under Art. 48 CrimPC to resolve the conflict. The direct application of coercive measures would have been incompatible with the system of national legal assistance, as this would jeopardise legal certainty and the orderly conduct of proceedings. The Federal Supreme Court rejected the contrary opinion expressed in academic literature, according to which procedural coercive measures could be permissible in cases of risk of collusion or where the requested authority is the employer of the accused person.

With regard to the admissibility of the video recordings, the court confirmed that although they were obtained in violation of the CrimPC, they…