Important reminder, in a ruling 6B_1216/2020 of April 11, 2022, on the principle of charging.

This principle postulates that the trial authority is bound by the facts as described by the prosecutor in the indictment or the criminal order. It is anchored in art. 350 al. 1 CPP: ” The court is bound by the state of facts described in the indictment but not by the legal assessment made by the public prosecutor “. Hence the importance for the Public Ministry to be precise in its indictment. Indeed, if the trial authority considers that the facts with which the accused is charged fall within the scope of an offence other than that envisaged by the Public Prosecutor’s Office, but that the facts set out in the indictment do not sufficiently describe all the constituent elements of that offence, a conviction will be impossible. The only solution is then for the trial authority to send the indictment back to the Public Prosecutor’s Office so that it can complete the statement of facts. This is permitted by art. 329 para. 2 CPP, which provides that the court: “shall refer the accusation to the Public Prosecutor’s Office for completion or correction “. Similarly, art. 333 para. 1 of the Swiss Penal Code provides as follows: ” The court shall give the Public Prosecutor’s Office the opportunity to amend the indictment when it considers that the facts set out in the indictment could meet the elements of another offence, but that the indictment does not meet the legal requirements “.

In practice, however, it is rare for the courts to spontaneously refer the indictment to the Public Prosecutor’s Office to complete the statement of facts. It is even rarer for the Public Prosecutor’s Office to ask the court to return the indictment it has drawn up, probably because this would mean admitting that it had not done its work with the necessary thoroughness or simply that it had missed something, which can happen to anyone.

This case is a good illustration.

A/ The facts

In this case, A. had been released by the Bernese Court of First Instance from the offences of impeding an official act and cruelty to animals for acts performed on two sheep. He had, however, been convicted by this court of cruelty to animals with regard to another sheep, which he had not treated according to the rules of art, which was not clear from the criminal order. The case was brought before the cantonal authority, which confirmed the lower authority’s judgment in all respects. A.’s first appeal was accepted by the Federal Court, which annulled the cantonal decision and sent the case back to the previous instance (TF 6B_638/2019 of October 17, 2019).

It was then that the cantonal authority, whose determination to convict had remained intact notwithstanding the federal judgment, relied on art. 329 para. 2 and art. 333 para. 1 of the Swiss Penal Code to send the criminal order back to the public prosecutor’s office so that it could be modified or completed. Then, once the criminal order has been modified, the Cantonal Court will again pronounce a guilty verdict, identical in all respects to the one it had already rendered. A. appealed again to the Federal Court, and was again successful.

Here’s why.

B/ The Law

This time, the federal judges must consider the question of the conformity, or non-conformity with federal law of the referral of the criminal order by the cantonal court to the Public Prosecutor’s Office with regard to articles 329 para. 2, 333 para. 1 and 379 CPP, following a referral from the Federal Court and in cases where there is no complainant.

In the five-judge decision, the Federal Court begins by stating that Art. 333 para. 1 of the Swiss Penal Code applies when the facts could, in the view of the court, be part of an offence other than the one mentioned by the prosecuting authority in the indictment, and for which all the constituent elements are not (entirely) included in the indictment. This is also the case when the court considers that the perpetrator’s behaviour could fall under the qualified offence, but the Public Prosecutor’s Office has retained only the basic offence, so that the decisive elements are missing.

The High Court goes on to state that when it sets aside a judgment and remits the case to the lower authority for a new decision along the lines of the recitals, the lower authority’s power to decide is limited to the points set aside in the remand judgment. The Federal Court recalls that this solution is based on the idea that the criminal proceedings are closed with the judgment of the second cantonal instance.

However, the Federal Court also specifies that, following a referral decision, the cantonal appeal authority is returned to the situation it was in before rendering its verdict. Therefore, it can theoretically apply art. 333 al. 1 CPP by the play of the reference of art. 379 CPP.

However, in the case at hand, the Federal Court noted the following elements, from which it follows that Art. 333 CPP could not be applied:

  • In its previous judgment (6B_638/2019 of October 17, 2019), the Federal Court had considered that the cantonal court had based its legal assessment on assumptions and findings of fact that deviated from the facts of which the appellant was accused in the Criminal Ordinance. This is not only on secondary points, but also on essential points. He therefore admitted the appeal, considering that the cantonal court had violated Art. 350 al. 1 CPP as well as the principle of accusation. He also noted that at no time during the proceedings did the Public Prosecutor’s Office, or even the courts of first and second instance, consider sending the indictment back for completion.
  • In the context of the new judgment (subject of the present appeal to the Federal Court) and in view of the above-mentioned considerations, our High Court confirms that the appellate authority could only render a guilty verdict if the elements of the file justified it and were sufficient. Otherwise, it was up to the court to acquit the accused of the charges against him.
  • The Federal Court considers that, in this case, a referral of the indictment to the Public Prosecutor’s Office does not comply with federal law (art. 333 para. 1 and 379 of the Swiss Penal Code) insofar as it goes beyond what is necessary to take into account the binding recitals of the Federal Court’s previous ruling.
  • It thus admitted A’s appeal, annulled the decision of the Cantonal Court and sent the case back to the Court of First Instance so that it could determine whether a guilty verdict could be rendered solely on the basis of the elements in the file, as well as with regard to the criminal order as it was initially transmitted to the Court of First Instance as the indictment.

However, our High Court emphasizes that this solution only applies when there is no plaintiff ( Die Konstellation im vorliegenden Fall unterscheidet sich hier davon insoweit, als es sich um ein Verfahren ohne Beteiligung von Privatklägern handelt, weshalb eine Anklageänderung bzw. -ergänzung nur in engen Grenzen möglich ist “). The Federal Court thus refers to a recent decision intended for publication (TF 6B_1404/2020 of January 17, 2022, not. consid. 2.6.7) in which it accepted the appeal of a plaintiff who had unsuccessfully requested several times from the cantonal authorities that the indictment be modified with regard to art. 329 para. 2 and 333 para. 1 CPP. However, since these courts did not comply with his requests, contrary to the law in the opinion of the Federal Court, it was justified for the appeal authority – and in this precise configuration – to refer the indictment to the public prosecutor’s office according to art. 329 para. 2, 333 para. 1 and 379 CPP.

However, this was clearly not the case in this instance, as there was no complainant.

However, the question remains open as to what the position of the Federal Court would be in the presence of an appeal by a plaintiff who requests, for the first time before it, the referral of the indictment… It is likely that in such a case, our High Court would not admit the appeal because of the lateness of the plea.

C/ Conclusion

This decision thus reminds us that the referral of an indictment to the Crown for completion is limited:

  1. When it intervenes after a judgment of dismissal …
  2. … and that the procedure does not involve a complainant who has previously and unsuccessfully requested the referral of the indictment to the Public Ministry.

Hence the need for the Public Prosecutor’s Office to be particularly precise in its indictment, or else not to be ashamed to acknowledge that it must complete its indictment and make a request to the trial authority in due course (in any case before a referral decision by the Federal Court).

Because to err is human. And just like the defendant – who is often considered to have made a mistake at the very least – the complainant, their lawyers, the prosecution and the trial authorities are sometimes wrong.

To conclude with the words of a 19th century Swiss author: “If you were wrong, why not admit it? It will be a good way to be right “Victor Cherbuliez.

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