Facts
The District Court of Zofingen convicted the appellant (A.) on 22 August 2022 of attempted sexual coercion, attempted sexual acts with a child, pornography, attempted pornography and coercion to a custodial sentence of 12 months, suspended on probation for a probationary period of 4 years, and a fine of CHF 1,500. In respect of further charges, it acquitted him and ordered a lifelong professional ban as well as an expulsion from the country for a period of 5 years.
On appeal by A. and the public prosecutor's office, the Higher Court of the Canton of Aargau acquitted A. on 21 December 2023 of the charges of attempted sexual acts with a minor for remuneration, attempted pornography and sexual acts with a child. It convicted him of sexual acts with a child, multiple acts of coercion (some attempted) and pornography to a custodial sentence of 3 years, suspended in part on probation for a probationary period of 4 years. It also found that the right to a speedy trial had been violated, expelled A. from the country for 5 years and ordered a lifelong professional ban.
A. filed an appeal in criminal matters with the Federal Supreme Court on 15 January 2025 and sought acquittals on several charges as well as a suspended fine of a maximum of 180 daily rates of CHF 10 each. The Office of the Attorney General of the Canton of Aargau and the Higher Court of the Canton of Aargau waived the right to submit a response.
The appellant argued that the lower court's findings of fact were based on unlawfully obtained evidence, in particular because the police had, during a house search on 11 November 2018, requested the PIN code for his mobile phone without first informing him of his right to refuse to give evidence (Art. 158 CrimPC). The lower court had held the evidence to be admissible, as the request for the PIN code had not constituted a formal interview.
Considerations
The Federal Supreme Court examined whether the request for the access code to a mobile phone during a house search should be classified as an informal interview or as an interview of the accused within the meaning of Art. 157 et seq. CrimPC. It emphasised that the “nemo tenetur” principle (Art. 32 Cst., Art. 6(1) ECHR, Art. 14(3)(g) UN Covenant II) and the privilege against self-incrimination (Art. 158(1)(b) CrimPC) require that a person be informed of the right to refuse to give evidence as soon as the suspicion against them has crystallised to the extent that they are seriously considered as a participant in the offence. This applies regardless of whether the interview is formally recorded as an interview or takes place during a house search.
The Court stated that an informal interview is only permissible at the initial stage of police investigations and must not be used to circumvent the protective scope of Art. 158 et seq. CrimPC. Once the roles are clear and the person is to be treated as an accused, an information pursuant to Art. 158(1) CrimPC must be given. Requesting a device lock code does not fall under administrative questions to facilitate the house search (e.g. which rooms are inhabited), but serves to obtain information relevant to the proceedings. Such an interview without informing the person of their rights constitutes an impermissible circumvention of the “nemo tenetur” principle and leads to the absolute inadmissibility of the evidence obtained (Art. 158(2), Art. 141(1) CrimPC).
With regard to the fruit of the poisonous tree doctrine, the Court referred to Art. 141(4) CrimPC as amended with effect from 1 January 2024, which now expressly also applies to absolutely…