Rejection of the appeal against the deemed withdrawal of the objection to a penal order due to unexcused absence from the main hearing

Facts

Parties and procedural history:

The appellant [A.] was issued a penal order by the Public Prosecutor’s Office of See/Oberland on 24 June 2022 for the offence of forgery of documents. He filed an objection against this. Following the objection proceedings, the Public Prosecutor’s Office referred the case as an indictment to the District Court of Meilen. The appellant was summoned to the main hearing on 26 June 2023 at 13:45. Neither the appellant nor his defence counsel appeared at this hearing. The defence counsel had already submitted a request for adjournment on 20 June 2023, which the District Court rejected on 22 June 2023. A further request for adjournment submitted on 26 June 2023 was not addressed in an order dated 5 July 2023. The District Court declared the proceedings concluded by deemed withdrawal of the objection, confirmed the legal force of the penal order and regulated the cost and compensation consequences.

The appellant filed an appeal against this decision of the District Court with the Higher Court of the Canton of Zurich, Criminal Division III. By decision of 20 November 2023, the Higher Court dismissed the appeal. The appellant then filed a criminal appeal with the Federal Supreme Court, seeking the annulment of the Higher Court’s decision, referral of the matter back to the District Court and an order for a new main hearing to be held.

Factual presentation of the lower courts:

On 26 June 2023 at 12:25, an employee of the defence counsel sent an unencrypted email without a qualified electronic signature to the court clerk of the District Court, stating that the defence counsel could not attend the main hearing due to a medical incident. A medical certificate for both the defence counsel and the appellant was promised. At 13:30, the employee informed the judge by telephone that further clarifications were necessary. The defence counsel submitted a request for adjournment after the main hearing, which the District Court dismissed as untimely. The Higher Court found that the appellant had failed to appear despite proper summons and instruction on the consequences of unexcused absence. It was also noted that on 23 June 2023, the appellant had told the court clerk that he was travelling by car between southern France and Sweden, which was later disproved as inaccurate. The appellant had already submitted a request for adjournment on 20 June 2023 on the grounds of childcare obligations, which had been rejected.

Considerations

1. Admissibility of the appeal and requirements for grounds:

The Federal Supreme Court examines whether the appeal meets the formal and substantive requirements. Pursuant to Art. 42 para. 1 and 2 FSCA, the appeal must be substantiated by showing in what respect the contested decision violates the law. In cases involving allegations of fundamental rights violations or arbitrariness, higher standards apply (Art. 106 para. 2 FSCA). The lower courts’ findings of fact and assessment of evidence may only be challenged if they are manifestly incorrect or based on a legal error and could have been decisive for the outcome of the proceedings (Art. 95, 97 para. 1, 105 paras. 1 and 2 FSCA). A finding of fact is manifestly incorrect only if it is arbitrary, i.e. if the decision is patently untenable or clearly contradicts the actual situation. A different assessment of the evidence is not sufficient (BGE 147 IV 73 para. 4.1.2, 141 IV 249 para. 1.3.1). The appellant’s grounds for appeal do not fully meet these requirements, so the Federal Supreme Court does not address all of the objections raised.

2. Deemed withdrawal of the objection and duty to inform:

Under Art. 356 para. 4 CrimPC, an objection is deemed withdrawn if the accused person fails to appear at the main hearing without valid excuse. This deemed withdrawal is compatible with the constitutional guarantee of access to justice (Art. 29a Cst.) and the convention right to a fair trial (Art. 6 para. 1 ECHR) only because the person concerned can themselves decide whether to accept the penal order or file an objection. An implied withdrawal requires that the person’s conduct clearly indicates a conscious waiver of legal protection. The appellant must therefore have been sufficiently informed of the consequences of unexcused absence (Art. 201 para. 2 lit. f CrimPC). The summons must clearly state that the objection will be deemed withdrawn if the accused person does not appear (BGE 140 IV 86 para. 2.6).

3. Excuse for absence and request for adjournment:

The appellant and his defence counsel claimed that the defence counsel had been prevented from attending due to a medical incident. The District Court treated the request for adjournment submitted after the main hearing as untimely. The Higher Court, however, found that while the notification of the impediment had been made promptly, it was not sufficiently substantiated. A medical certificate must not only certify the impediment but also plausibly demonstrate its impact on the ability to attend the hearing (Art. 205 para. 2 CrimPC). The medical…