We continue our 2021 retrospective of notable judgments. Today, the Federal Court has issued aruling (1B_485/2021, November 26, 2021) clarifying the scope of the appeal authority’s jurisdiction in cases of refusal to sever documents, and thus condemning the practice of certain cantonal appeal authorities.

A/ The facts and arguments of the Geneva Chamber of Criminal Appeals

As part of an investigation into fraud and attempted fraud, Geneva’s Public Prosecutor’s Office has refused to remove documents from the case file.

The cantonal appeal authority declared the appeal against this decision inadmissible.

In its decision, the cantonal authority considered that the defendant had no legally protected interest within the meaning of art. 382 para. 1 of the Swiss Code of Criminal Procedure to have his statements to the police immediately removed from the file, since the appeal did not concern a violation of art. 140 CPP. It based its decision on the case law of the Swiss Federal Supreme Court concerning art. 93 LTF, according to which the legislator had ruled out the possibility of settling disputes relating to illegal evidence before the accused was sent back to court, since this issue could be raised again up to the final closure of the proceedings (ATF 144 IV 127 c. 1.3.1). According to the Criminal Chamber of Appeal, the same reasoning applies in the case of unexploitable evidence, on the grounds that the defendant on trial may raise a preliminary question at the trial concerning evidence he considers illegal.

The defendant appealed to the Federal Court, and he was right to do so.

B/ The law

The Federal Supreme Court begins by recalling that it has already ruled on the practice of cantonal authorities of last instance not to hear an appeal within the meaning of art. 393 ff CPP against a decision by the public prosecutor’s office refusing (or agreeing) to withdraw allegedly unusable evidence, in the absence of irreparable harm or legally protected interest, and qualified it as contrary to federal law (ATF 143 IV 475 c. 2).

Our Haute recalls this case law and completes its reasoning as follows:

1) The Federal Court points out that the competence of the trial judge to rule on the usability of the evidence gathered does not allow the competence of the appeal authority to be restricted.

In this respect, he points out that, when the Code of Criminal Procedure was adopted, the legislator wished to strengthen the rights of the defense to compensate for the powers granted to the criminal prosecution authority and, with this in mind, introduced the principle of universal appeal, the corollary of which is the principle of double cantonal jurisdiction. All procedural decisions, whether issued by the public prosecutor’s office, the police or the authorities responsible for fines, must be subject to appeal (ATF 144 IV 81 c. 2.3.1). The legislator has provided for only two exceptions to this rule, i.e. when the appeal is admissible or when the public prosecutor’s office, or the competent authority in matters of contraventions, rejects a request for evidence which can be repeated without legal prejudice before the court of first instance (art. 394 let. a and b CPP). Orders refusing to remove allegedly unusable evidence from the file are not among these exceptions, and there is no reason to believe that the legislator would have intended the opposite.

2) The Federal Court adds that, in the context of an appeal against the removal of documents, the examination to be carried out by the appeal authority must not be limited solely to violations of Art. 140 CPP!

In the presence of relatively inexploitable evidence within the meaning of art. 141 al. 2 CPPthe appeal authority may reject the appeal, but only after examining it and coming to the conclusion that the trial judge will be in a better position to examine this question in the light of all the evidence, in particular when it is necessary to carry out a “full” or “partial” examination. weighing interests and the fact that it cannot be used is not immediately obvious.

In all cases, the appeal authority cannot declare the appeal inadmissible, but must rule on the admissibility of the evidence in the light of the current state of the investigation.

3) Finally, our High Court recalls that the Code of Criminal Procedure does not make the admission of a cantonal appeal within the meaning of art. 393 ff CPP subject to the existence of irreparable harm within the meaning of art. 93 LTF, but only that of a legally protected interest.

In this case, the defendant clearly has a general protected interest in having the allegedly unusable evidence removed from the file. He also has an interest in the rapid withdrawal of such evidence, since this can have a decisive impact on the decisions that the management of the proceedings may take, which must be based on sufficient suspicion, particularly with regard to coercive measures or indictments.

C/ Conclusion

The Federal Court’s decision will certainly have the advantage of standardizing the practices of cantonal appeals authorities with regard to the admissibility of appeals concerning the use of evidence gathered and the removal of illegal evidence from the file.

However, the Federal Supreme Court does not appear to impose any obligation on defenders to request a ruling on the usability of evidence during an investigation, or to appeal against a ruling refusing to exclude evidence during an investigation. The defense must continue to be able to invoke the inexploitable nature of the evidence in proceedings before the court of first instance. He must also be able to repeat this plea even if the appeal authority has rejected his appeal during the course of the investigation.

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