Explore the principle of indictment under the Code of Criminal Procedure through the case of Pierin Vincenz before the Zurich High Court. We will delve into essential aspects that clarify the indictment's purpose for the accused and facilitate their defense. Learn about the procedural consequences of flaws in the indictment and how the legal system addresses them.
Special attention is focused on the ongoing case of Pierin Vincenz, former head of Raiffeisen Bank. The High Court has pointed out significant defects in the indictment and has overturned related judgments. Understand how this decision impacts the proceedings and the potential repercussions for the involved parties.
1. What is the Principle of
Indictment?
The indictment should succinctly yet accurately detail the
actions attributed to the accused, including the location, date,
time, type, and consequences of the act (Art. 325 para. 1 lit. f
Swiss Code of Criminal Procedure; "CCP"). It is crucial
for the accused to comprehend the charges against them to
adequately prepare a defense. The indictment must avoid unnecessary
details that are irrelevant to the legal subsumption.
An overly brief or verbose indictment can compromise its informational function. The charge should be detailed enough to enable an effective defense, and overly elaborate descriptions that infringe upon the principle of indictment should be avoided. The indictment must state the facts but not prove them, avoiding any inclusion of evidence or file references. Legal provisions relevant to the "scope of legal assignments" should be precisely specified (including numbers and paragraphs), and the legal offense's content or related legal explanations should not be included.
Even if defended, the accused must be informed in a comprehensible language about the crucial content of key procedural actions, either orally or in writing. There is no right to a complete translation of all procedural documents or the files (Art. 68 para. 2 CCP). Essential procedural actions generally encompass the indictment, the defender's instructions, and the main hearing's critical events. The indictment, at a minimum, must generally include a written translation.
2. What are the Procedural
Consequences?
During the main proceedings, the court verifies the
indictment's accuracy and the presence of procedural
prerequisites or obstacles (Art. 329 para. 1 CCP). If, from this
review or later in the process, a judgment is currently unfeasible,
the court suspends the proceedings. If necessary, it sends the
indictment back to the public prosecutor's office for
correction or supplementation (Art. 329 para. 2 CCP). This also
applies in appellate proceedings (Art. 379 CCP).
If significant flaws are found in the first instance proceedings that cannot be addressed in the appellate proceedings, the appellate court overturns the challenged judgment and refers the case back to the first instance for retrial and a new judgment (Art. 409 para. 1 CCP). This overturning occurs in cases of serious, incurable procedural flaws, ensuring that the parties receive a proper first-instance procedure.
3. Decision by the Zurich High Court on January 25,
2024, in Vincenz's Case
In this criminal proceeding involving Pierin Vincenz, the
former head of Raiffeisen Bank, the 356-page indictment dated
October 26, 2020, has been criticized for serious flaws by the High
Court:
"The indictment excessively details beyond the legal framework required, lacking a concise and accurate description of the actions ascribed to the accused (Art. 325 para. 1 lit. f CCP). It is repetitive and includes irrelevant historical data, rendering it akin to a legal justification not envisaged by the CCP. It is also unnecessarily verbose." (Consideration 4.6)
As a result, the High Court has overturned the judgments from April 11, 2022, and August 22, 2022, instructing that the indictment be returned to the public prosecutor's office for improvement, to avoid procedural delays and ensure a fair trial. The public prosecutor's office must provide a full French translation of the indictment for the French-speaking defendant before the main hearing.
This decision does not imply a change in the initial convictions but ensures adherence to procedural fairness.
4. Has the Zurich Public
Prosecutor's Office Responded?
The Zurich Public Prosecutor's Office has filed a
complaint against the High Court's decision, arguing that the
right to a legal hearing was not violated, as evidenced during the
main hearing where all parties engaged with the accusations in the
indictment comprehensively. Thus, none of the parties substantiated
their request for referral back to the High Court as thoroughly as
the indictment itself.