Facts
On 29 March 1974, the Court of Appeal of the Canton of Basel-Stadt sentenced Siegfried Ziltener to 18 months in prison and a fine of 1,000 francs for negligent homicide, serious and repeated violation of road traffic rules, driving under the influence of alcohol and fatigue, hit-and-run and attempted refusal of a blood test. The court granted a suspension of the sentence with a probation period of four years and a driving ban for two years.
The Public Prosecutor's Office of the Canton of Basel-Stadt filed a nullity appeal against this decision, which was admitted by the Federal Court on 4 July 1974. The Federal Court annulled the decision of the Court of Appeal and referred it back to refuse the suspension of the sentence.
The Court of Appeal rendered a new judgment on 24 September 1974, in which it not only refused the suspension of the sentence but also reduced the sentence to 12 months in prison and waived the fine.
The Public Prosecutor's Office of the Canton of Basel-Stadt filed a new nullity appeal against this decision, requesting the annulment of the Court of Appeal's judgment with regard to the reduction of the sentence.
Considerations
The Federal Court considered that the Court of Appeal had made an error in reducing the sentence, as it was not bound by the grounds of the initial judgment, but only by the Federal Court's decision to refuse the suspension of the sentence.
The Federal Court recalled that, according to Article 277ter paragraph 2 of the Federal Code of Criminal Procedure (FPO), the cantonal court is bound by the grounds of the referral judgment and cannot…