Facts

The Higher Court of the Canton of Aargau convicted on 11 March 2024 the appellant A. of aggravated (life-endangering) robbery and trespass to the detriment of D.C. and E.C. to a custodial sentence of 9¼ years, with credit for time served, as well as to payments for damages and satisfaction. At the same time, it convicted the co-defendant B. of the same offences to a custodial sentence of 8 years and 2½ months, also with credit for time served, and revoked the suspended execution of a pre-existing fine. Both appellants were additionally sentenced to expulsion from Switzerland for 15 years.

The charges were based on video recordings from surveillance cameras of a neighbouring property and a service station, which had been made by private individuals. The appellants argued that these recordings had been unlawfully obtained and should therefore not be admissible. The Higher Court, however, held that the recordings were admissible, as the criminal authorities could hypothetically have lawfully obtained them and the offence was a serious one.

Appellants A. and B. then filed a criminal appeal (case numbers 6B_385/2024 and 6B_390/2024) with the Federal Supreme Court, seeking their acquittal and the quashing of the judgments. They argued that the video recordings should not be admissible because, at the time they were made, there was no suspicion of the offence and the recordings could therefore not have been lawfully obtained by the criminal authorities.

Considerations

The Federal Supreme Court confirmed the case law on the admissibility of evidence unlawfully obtained by private individuals and clarified the applicable standard of review. It held that, when assessing the hypothetical lawful procurement by the criminal authorities, an abstract standard of review must be applied. What is decisive is not whether there was a concrete suspicion of the offence at the time the private evidence was obtained, but whether the criminal authorities could have lawfully obtained the evidence based on the abstract legal situation. This means that only those legal restrictions that can be applied abstractly, without assessing the specific circumstances of the individual case, are to be taken into account.

The Court emphasised that the hypothesis of lawful state procurement does not depend on the actual ability of the criminal authorities to obtain the evidence, but on whether the evidence is abstractly covered by the statutory scheme of evidence and no legal restrictions (e.g. seizure prohibitions under Art. 264 CrimPC or the requirement of a listed offence under Art. 269 para. 2 CrimPC) apply. Suspicion of the offence and considerations of proportionality, by contrast, are not to be examined, as these would require a concrete assessment of the circumstances of the individual case.

In…