Facts
On 6 December 2019, the complainant A. was inspected by border guards at the Au (SG) border crossing upon entering Switzerland. In the boot of his vehicle, 175 hemp seedlings were found, and in his jacket pocket, 0.7 grams of marijuana. The Cantonal Police of St. Gallen were notified, and the public prosecutor’s office was informed of the findings.
On 12 May 2021, the District Court of Rheintal acquitted [A.] of the charge of a minor offence under the Narcotics Act (NarcA) but convicted him of a misdemeanour under the NarcA (importation of narcotics) and sentenced him to a suspended fine of 50 daily rates of CHF 30 each. The court also ordered the confiscation and destruction of the seized hemp seedlings and marijuana. The procedural costs were allocated 90 % to [A.] and 10 % to the state. The application for reimbursement of expenses was rejected.
The Cantonal Court of St. Gallen quashed the District Court’s judgment with its decision of 23 August 2022 and acquitted [A.] of the charge of a minor offence under the NarcA but convicted him of a misdemeanour under the NarcA (importation of 175 hemp seedlings) and imposed a suspended fine. The confiscation and destruction of the seized items was ordered, and the application for reimbursement of expenses was again rejected.
[A.] then filed a criminal appeal with the Federal Supreme Court and requested that the contested decision be set aside and that he be acquitted of all charges. He also sought reimbursement of expenses of CHF 712.80 from the state. In the alternative, he requested that the matter be referred back to the lower court for a decision on ancillary consequences.
Considerations
The Federal Supreme Court examined A.’s appeal, in particular with regard to the admissibility of the evidence obtained through the seizure of the hemp seedlings. The central issue was whether the orally ordered seizure by the public prosecutor’s office had to be subsequently confirmed in writing and whether this was a validity or an order provision.
The Federal Supreme Court found that, although a seizure may be ordered orally in urgent cases under Art. 263 para. 2 CrimPC, it must subsequently be confirmed in writing. This obligation to provide subsequent written confirmation is to be classified as a validity provision within the meaning of Art. 141 para. 2 CrimPC. The purpose of this provision is to guarantee the right to be heard (Art. 29 para. 2 Cst.) and the duty of authorities to document their actions. Only through written confirmation can the person concerned understand the grounds for the seizure and, if necessary, lodge an appeal. The 10-day appeal period under Art. 396 para. 1 CrimPC only begins to run upon written service of the seizure order.
In the present case, the orally ordered seizure by the public prosecutor’s office was not subsequently confirmed in writing. As a result, the grounds for the seizure were not recorded in the file, and the complainant did not receive an appealable order. Although the lower court had argued that the…