Facts

Parties and procedural history:

The appellant, [A.] , was accused by the Senior Public Prosecutor’s Office of the Canton of Aargau of having, on 19 December 2021 at 09:41 on Äussere Luzernerstrasse in [U.] , exceeded the permissible maximum speed of 50 km/h by a tolerance-adjusted 36 km/h in his Mercedes xxx. This constitutes a serious traffic offence under Art. 90 para. 2 RTA.

On 18 January 2022, [A.] was interrogated by police officer [B.] at the police station [W.] at the request of the Regional Police [V.] , in the context of mutual legal assistance. The interrogation record contained a pre-printed legal advice notice under Art. 158 CrimPC, which [A.] signed and initialled on all four pages. The legal advice included information on the right to refuse to make a statement, the right to legal representation and the right to translation.

The Public Prosecutor’s Office Zofingen-Kulm convicted [A.] by summary penalty order of 6 May 2022 to an unconditional fine of 70 day-fines at CHF 210 each. [A.] filed an objection against this penalty order, whereupon the District Court Zofingen acquitted him by judgment of 20 March 2023. The Public Prosecutor’s Office appealed against this judgment. The Higher Court of the Canton of Aargau convicted [A.] by judgment of 5 September 2023 to an unconditional fine of 120 day-fines at CHF 300 each and ruled on the cost consequences.

[A.] filed an appeal against this judgment with the Federal Supreme Court, seeking the annulment of operative provisions 1 to 4 of the higher court’s judgment and his acquittal from guilt and punishment. He also requested that the procedural costs be borne by the state treasury and compensation for the first and second-instance proceedings.

Key points of the appeal:

  • Insufficient legal advice under Art. 158 CrimPC;
  • Lack of authority of the witness to testify regarding official findings;
  • Deception by the witness prior to the interrogation;
  • Arbitrary establishment of the facts by the lower court;
  • Inappropriate sentencing.

Considerations

1. Duty to provide legal advice under Art. 158 CrimPC:

The appellant argues that the legal advice in the interrogation record was inadequate because it was provided in bullet points without any explanatory content. The lower court, however, found that the legal advice under Art. 158 para. 1 CrimPC had covered the central rights of the accused – in particular the right to refuse to make a statement, the right to legal representation and the right to translation. Moreover, the appellant had signed the advice and initialled the record on all pages without raising any questions. The lower court based its findings on the testimony of the interrogating police officer, who confirmed that he had provided the legal advice ‘verbatim’. The Federal Supreme Court considered this assessment not to be arbitrary and noted that the bullet-point advice in the record at least cited the relevant statutory provisions. Whether such advice alone suffices remained unresolved, as the lower court additionally relied on the witness testimony. The appeal was dismissed on this point.

2. Admissibility of witness testimony and official secrecy:

The appellant claimed that the police officer’s testimony was inadmissible because he had not been released from the duty of official secrecy. The lower court held that the duty of official secrecy does not apply between prosecution authorities when they are cooperating in the same matter. Moreover, the witness had been subject to a duty to report, so that an authorisation by the superior authority was dispensable. The Federal Supreme Court confirmed this jurisprudence (cf. FSCA 140 IV 177) and explained that cooperation between the police, the Public Prosecutor’s Office and the courts enables smooth criminal prosecution. The witness testimony had therefore been correctly taken into account.

3. Allegation of deception by the witness:

The appellant alleged that the witness had falsely claimed to him on the phone that there was a radar photo showing him as the driver. The lower court rejected this allegation, as the witness plausibly explained during the main hearing that he had merely informed the…