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After an argument, a landlord strangled his tenant and then went on to kill his body. He was later found incapable of being guilty and was only punished for disturbing the peace of the dead. But now the Supreme Federal Court finds serious procedural errors.
The Federal Supreme Court in Lausanne is an unusually sharp criticism of the Zurich authorities and the psychiatric report.
There was a lot of discussion in this special purpose residential community. On the amount of the rent – the landlord, an IV and welfare recipient who paid 1,100 francs for the apartment, demanded 900 francs from his subtenant, a French IT specialist – for mail delivery, house rules, or dirty dishes. However, at lunch in September 2016, the dispute escalated and ended tragically: the owner strangled the 28-year-old woman, stripped her, cleaned her and sexually assaulted her.
Two years later, the Zurich District Court sentenced the man to 22 months in prison for disturbing the peace of the dead. Although the landlord’s behavior would normally qualify as intentional homicide, the district court did not find this to be true. The fault was that the owner was not at fault. A psychiatric report confirmed that he had a “chronic psychosis of the schizophrenic range” and mixed use of psychoactive substances in the past. The court ordered a therapeutic measure for hospitalized patients.
In February 2020, the Zurich High Court confirmed the sentence: the owner was also declared incompetent in the second instance and the internment measure was confirmed. He went to the Federal Supreme Court, where he requested the reversal of the High Court ruling, which in reality the Lausanne judges are doing with a main decision.
However, the Federal Supreme Court not only approves the landlord’s complaint, as the sentence published on Monday shows. He also harshly criticizes the lower courts and the psychiatric report. The case now returns to the status of the preliminary proceedings and, therefore, to the Prosecutor I of the Canton of Zurich. Then it rolls up again.
Of all things, procedural law
Specifically, the Supreme Court of Justice of the Nation found a particularly serious and evident procedural error and, therefore, a violation of the criminal procedure code. This is precisely the case of procedural law, which not only regulates the course of the criminal process, but above all a procedure based on the rule of law and, therefore, ultimately guarantees equity and legality.
For a defendant to be convicted, the act must have been committed illegally and the offense must be carried out both in objective and subjective terms. As a third characteristic, the perpetrator must also have acted guiltily. However, if the accused is incapable of being guilty, a guilty verdict cannot be rendered and he cannot be punished unless, for example, the insanity is self-inflicted.
If the Public Ministry already reaches the conclusion based on an expert opinion that the interested party is incapable of guilt and therefore requests the appropriate therapeutic measures, it proceeds differently, in terms of procedural law, than usual: the procedure applies to a disabled person, which is found in article 374 f. the Code of Criminal Procedure is regulated. According to the Federal Supreme Court, it is “a special independent procedure, clearly differentiated from the ordinary one and in which a conviction cannot be handed down due to lack of imputation of wrongful conduct.”
All the lower courts were negligent
In the specific case, the Public Ministry had requested exactly this procedure on the one hand, but on the other hand it also demanded an “appropriate” punishment for the two acts of the owner in a so-called contingency request. For the Federal Supreme Court, the indictment shows “beyond any doubt” that the prerequisites for a special procedure in the case of a guilty defendant did not exist from the beginning. Rather, the prosecutor should have filed charges through due process.
It would have been for the Zurich District Court to correct this formal error. Instead, he made it worse, according to the federal court, by convicting the landlord of one act (disturbing the peace of the dead) and thereby found guilty, but accepting that he was incapable of being guilty of the intentional murder. With this mixture of two procedural forms, the district court violated both the principle of impeachment and the principle of strict formality, the Federal Court concluded.
Now the second instance should have corrected the “serious and obvious formal error.” According to the Federal Supreme Court, the Zurich High Court should have returned the matter to the public prosecutor to continue with the preliminary proceedings. But he has upheld the district court ruling. Only the Lausanne judges have now corrected it with their judgment.
Serious flaws in the report
But they also don’t let the psychiatric report, which served as the basis for the owner’s guilt, do any good. They emphasize that they did not have to respond to the landlord’s complaint in this regard, since the lower court’s judgment should have been reversed for other reasons. But to avoid “further procedural delays,” they did it anyway.
The Federal Supreme Court concluded with the complainant that the psychiatric report was not clear or was not sufficiently justified with respect to essential points. There is no definition of specifically diagnosed schizoaffective disorder, and therefore there are no explanations based on the findings on which the expert concludes for such disorder. Later, during the expert’s interrogation, it turned out that he had not taken into account a previous conviction of the owner. Furthermore, the expert spontaneously changed his diagnosis during the survey or put his previous assessment into perspective.
The Supreme Federal Court considers the expert opinion inadequate insofar as the expert responded “not clearly” to the questions that were directed to him in some cases and gave “inadequate” reasons for his conclusions. In general, the declared deficiencies, which refer to central points of the report, are “so serious” that the report “does not represent a legally sufficient basis to assess guilt and verify the requirements to order a measure.” The Federal Supreme Court does not explicitly state it. However, after this clear verdict, it is obvious that now the prosecutor must also request a new expert opinion.
Sentence 6B_360 / 2020 of October 8 and 20 – BGE Publication
