Orally Ordered Seizure and Lack of Subsequent Written Confirmation (TF, 7B_455/2023)
An individual, found with 180 hemp plants and 7 grams of marijuana, is convicted by the Public Prosecutor's Office (hereinafter "the MP") of St. Gallen for drug importation. After appealing, he is acquitted of importation for personal use, but the drug importation offense is confirmed. In the second instance, the sentence is increased; the drugs are confiscated, and their destruction is ordered. The individual files an appeal with the Federal Court (hereinafter "the FC").
The appellant contests his conviction, arguing that there is no evidence of an orally ordered seizure by the MP. Even if it is admitted that a seizure was orally ordered, it was not confirmed in writing, as required by Article 263 para. 2 of the Swiss Code of Criminal Procedure (CPP). The evidence obtained from this seizure would, therefore, be inadmissible, according to the appellant.
The FC must determine whether Article 263 para. 2 CPP constitutes a rule of validity (Article 141 para. 2 CPP) or a procedural guideline (Article 141 para. 3 CPP).
To determine whether it is a rule of validity or a procedural guideline, it is necessary to examine the protective purpose of the rule in the absence of an explicit legal qualification.
When a procedural rule is fundamental to preserving the rights of the person involved, and this goal can only be achieved by declaring the procedural act invalid in case of non-compliance, it is considered a rule of validity.
In this case, the written confirmation of the orally ordered seizure serves two purposes: it documents the criminal procedure and guarantees the right to be heard.
The right to be heard requires authorities to provide clear reasoning for their decisions, so the person involved can fully understand the scope of the decision and contest it before the higher court with full knowledge of the facts.
The FC considers that only a written confirmation makes the reasons for an orally ordered seizure accessible. Although the law permits an oral seizure in cases of emergency, the absence of a written confirmation prevents the appropriate notification of the reasons justifying the seizure.
The fact that the appellant could have requested a written confirmation from the MP to contest the seizure is irrelevant. According to Article 263 para. 2 CPP, this obligation exists independently of any request. In the absence of a written confirmation, the appellant's rights are not sufficiently protected.
The MP's obligation to subsequently confirm in writing the seizure ordered orally constitutes a rule of validity within the meaning of Article 141 para. 2 CPP. The hemp and the analyses performed on these plants are, therefore, inadmissible under Article 141 para. 4 CPP.