Dismissal of appeal due to inability to participate in proceedings in criminal proceedings

Facts

Parties: Appellant [A.] , represented by attorney Fred Hofer, against the Public Prosecutor's Office of the Canton of Bern.

Previous instance: Higher Court of the Canton of Bern, 1st Criminal Chamber, judgment of January 18, 2021 (SK 19 454).

Facts: The Higher Court of the Canton of Bern convicted [A.] on January 18, 2021 of misappropriation, attempted coercion, and property damage to a conditional fine of 30 daily rates of CHF 50.-- and ordered him to pay compensation for damages in the amount of CHF 327.30. [A.] filed an appeal in criminal matters and requested the annulment of the judgment and the remittal of the case to the previous instance for a new decision. He also requested free legal aid and legal representation.

Considerations

The appeal in criminal matters is primarily a reformatory remedy. The appeal must contain an application in the matter. The appellant requested, without an explicit application in the matter, the annulment of the previous instance's judgment and the remittal to the previous instance. In the reasoning, he claimed that the hearing before the previous instance should be repeated as he had not been able to participate in the proceedings at the time of the hearing. The legal request was interpreted in this sense, and the appeal was considered admissible.

The appellant claimed that he had submitted to the previous instance a medical certificate certifying his inability to participate in the proceedings due to sleep disorders and the intake of strong sleeping pills. The previous instance dismissed the certificate without reasoning and thus violated the constitutional prohibition of arbitrariness. The previous instance had, however, rejected the application to adjourn the main hearing as the certificate did not show any concrete restrictions regarding the hearing and the appellant had the opportunity to participate in the hearing in the afternoon.

The ability to participate in the proceedings of an accused person is given if he or she is physically and mentally able to follow the proceedings. The previous instance rightly assumed that no general inability to participate in the…