Revision of a penal order after withdrawal of the objection: non-entry by the lower court confirmed in result

Facts

The appellant ([A.] ) received a penal order (SUV_B.2013.25) from the Public Prosecutor's Office of Bischofszell on 12 August 2019. He lodged an objection against it on 23 August 2019, which the Public Prosecutor's Office maintained. The file was transmitted to the District Court of Weinfelden on 2 October 2019.

On 3 January 2020 his then legal representative withdrew the objection. The District Court of Weinfelden struck the proceedings off the list as concluded by decision S5.2019.15 of 7 January 2020 (dispatched on 8 January 2020). The decision contained a notice of appeal to the Cantonal Court of Appeal with a ten-day time limit. No appeal was lodged within this time limit.

On 31 January 2020 the appellant filed a 'statement' with the District Court, stating that he had not intended to withdraw the objection but had merely wished to be excused from the main hearing. The District Court did not respond to this. No application for restoration under Art. 94 CrimPC was filed.

On 28 January 2021 the appellant asked the Public Prosecutor's Office to set aside the penal order. The office referred him to revision proceedings before the Cantonal Court of Appeal of the Canton of Thurgau.

By submissions of 26 February and 4 March 2021 he applied to the Cantonal Court of Appeal for revision of the penal order and of the District Court decision. By circulation decision of 11 March 2021 the Cantonal Court of Appeal did not enter into the application and imposed a fee of CHF 500.--.

By way of a appeal in criminal matters to the Federal Supreme Court, the appellant requested in substance that the decision be set aside, that the application for revision be entered into, and that he be acquitted. The appeal was lodged within time; a belated supplement remained unconsidered. The Federal Supreme Court examined the revision under Art. 410 et seq. CrimPC.

Considerations

The only object of the appeal is the final cantonal decision of the Cantonal Court of Appeal of 11 March 2021 (Art. 80 para. 1 FSCA). Criticism of the procedure of the first-instance authority or of the Public Prosecutor's Office, as well as the revision ground of criminal influence on the proceedings raised for the first time before the Federal Supreme Court, are not to be examined for want of exhaustion of the instances. The reference to Art. 328 para. 1 lit. b CPC is inapplicable in criminal proceedings.

Revision under Art. 410 para. 1 lit. a CrimPC requires new facts or evidence capable of bringing about an acquittal or a substantially milder sentence, and it does not serve to call final decisions into question at any time or to remedy procedural omissions. The application for revision was assessed in the preliminary examination under Art. 412 para. 2 CrimPC.

The lower court wrongly assumed that only the District Court decision, but not the penal order, was open to revision. Only judgments within the meaning of Art. 80 para. 1 CrimPC, that is, substantive decisions on criminal or civil matters, are amenable to revision. Revision is excluded against resolutions or orders (BGE 141 IV 269 E. 2.2.2). The striking off of the proceedings following withdrawal of the objection has only a declaratory effect and is therefore not amenable to revision. Revision of the striking-off decision is thus excluded from the outset.

Withdrawal of the objection is in principle final under Art. 356 para. 3 CrimPC, unless it was induced by deception, a criminal offence…