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Termination of criminal proceedings by application of the principle of “in dubio pro duriore”

Termination of criminal proceedings by application of the principle of “in dubio pro duriore”

In February 2023, the Office of the Public Prosecutor ordered the termination of proceedings against an accused person, who had, in October 2022, been accused of contravening the traffic rules laid down in the Road Traffic Act (SVG; SR 741.01). The accused had been represented by the law firm Kanzlei König.

The Office of the Public Prosecutor ordered that the proceedings be terminated pursuant to Article 319(1)(a) of the Criminal Procedure Code (CrimPC; SR 312.0). That provision provides that the Office of the Public Prosecutor may terminate the proceedings if there are no substantiated grounds for suspicion that would justify a prosecution. According to the Federal Supreme Court, termination is, as a general rule, to be ordered “only in cases of clear impunity or if the procedural prerequisites are clearly not fulfilled” (judgment of the Federal Supreme Court of 10 April 2017, 6B_698/2016; see paragraph 2.3. with further references cited therein). Article 319(1)(a) of the CrimPC gives rise to the principle that a prosecution is to be brought in cases of doubt (Latin: “in dubio pro duriore”; see the Dispatch on the Unification of Criminal Procedure Law [Botschaft zur Vereinheitlichung des Strafprozessrechts] of 21 December 2005, BBl 2006 1273).

When applying the principle of “in dubio pro duriore” the Office of the Public Prosecutor is accorded a margin of discretion (Judgment of the Federal Supreme Court of 10 June 2021, 6B_1164/2020; see paragraph 2.1. with further references cited therein). In the present case, serious doubts were cast on the guilt of the accused during the course of the rejection procedure as a result of the account of the facts as presented from the point of view of the accused, as well as in the light of the statements made by the involved witnesses.

Kanzlei König provides advice and representation in criminal law.

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