Facts
The appellant [A.] , represented by a lawyer, is the subject of a criminal investigation together with two accomplices, all three nationals of the same country, for gang theft and an offence under the Federal Act on Foreign Nationals and Integration (FNIA). The third defendant is also charged with trespass.
The alleged facts concern the theft of seven bottles of whisky, with a total value of CHF 254.65, committed on 20 November 2018 in a shop in [Z.] (after entering Switzerland from France). One defendant allegedly placed five bottles out of camera range, the appellant allegedly retrieved them and put them in his backpack, while the third allegedly concealed two bottles in his jacket. Defendant [C.] , already subject to several entry bans in this chain, allegedly paid for a packet of crisps and a bottle of water to divert attention. The defendants were apprehended by the shop's security staff and the stolen goods were recovered.
On 23 November 2018, the Compulsory Measures Court (Tmc) ordered the appellant's provisional detention until 20 January 2019, on grounds of sufficient evidence and risk of flight. On 13 December 2018, the Public Prosecutor's Office of the Northern Vaud district referred the defendants for trial, requesting for the appellant a custodial sentence of seven months with a partially suspended term of two years, less the pre-trial detention and ten days' reparation for unlawful detention conditions. The hearings were scheduled for 9 April 2019.
On 18 December 2018, the Tmc ordered detention for security reasons for four months, finding sufficient evidence, a concrete risk of flight (nationality, lack of a domicile, lack of financial resources, lack of ties to Switzerland) not offset by alternative measures, and compliance with proportionality.
On 9 January 2019, the Criminal Appeals Chamber of the Vaud Cantonal Court dismissed the defendant's appeal. The latter lodged a criminal appeal with the Federal Supreme Court on 15 February 2019, seeking his immediate release, or alternatively the remittal of the case, and requesting legal aid. The previous authorities waived the filing of observations.
Considerations
The Federal Supreme Court admits the criminal appeal against a decision concerning detention for security reasons (art. 78 para. 1 FSCA; art. 212 et seq. CrimPC), lodged by a detained defendant with standing to appeal (art. 81 para. 1 let. a and b no. 1 FSCA), in a timely manner and against a decision of final cantonal instance (art. 80 FSCA). The appellant does not dispute the risk of flight or the absence of alternative measures; he only challenges the existence of sufficient suspicions of offences.
Provisional or security detention is justified with regard to personal liberty (art. 10 para. 2 Cst.; Art. 5 FNIA) only if it has a legal basis (art. 221 CrimPC), pursues a public interest, respects proportionality (art. 36 Cst.) and is based on a risk of flight, collusion or reoffending, in the presence of sufficient evidence. The detention judge does not carry out a full weighing of the evidence; he only examines whether there are serious indications of guilt, which must strengthen as the investigation progresses in order to become plausible.
Concerning the FNIA offence, the appellant does not dispute having entered Switzerland without sufficient financial means (art. 5 para. 1 let. b FNIA; art. 115 para. 1 let. a FNIA). The Federal Supreme Court finds that the cantonal court could, without violating federal law, admit strong suspicions in this respect. The public prosecutor, moreover, maintained both charges at the conclusion of the investigation.
As regards gang theft (art. 139 no. 3 para. 2 SCC), the concept presupposes a willingness to associate in order to commit offences, with a minimum of organisation and a sufficiently stable collaboration, even if short-lived. The modus operandi (transfer of the bottles, retrieval by another, diversion by a purchase, grouping of the accomplices), combined with the prior record of one of the…