I. New judgment (para. 1)

1 Pursuant to Art. 370 Code of Criminal Procedure, if the requirements for a new assessment are met in application of Art. 369 Code of Criminal Procedure and a new main hearing has been held, the court shall pass a new judgment. Since the procedural rights of the accused could be fully respected on the occasion of the third main hearing due to his presence, no judgment in absentia is issued under Art. 369/370 CCP, but an "ordinary" judgment under Art. 348 et seq. CCP. This new judgment may in turn be challenged with the ordinary legal remedies under StPO (Art. 370 para. 1 StPO). Within the framework of these appeals, the parties complained against may in particular complain that the requirements for a new judgment were not met. If the new judgment is a purely procedural judgment, e.g. a discontinuation pursuant to Art. 329 para. 4 CCP due to the statute of limitations that has occurred in the meantime, the appeal is conceivable.

II. Effect of the new judgment (para. 2)

2 The new judgment becomes final in accordance with the requirements of Art. 437 Criminal Procedure Code. It is essential that the judgment in absentia does not lapse as soon as the new proceedings are granted or the new main hearing is opened, but only when there is a final new judgment in accordance with Art. 370 StPO. The original judgment in absentia is replaced by the new judgment.

3 If the earlier judgment in absentia lapses, i.e. the proceedings are as if it had never been issued, the time that has elapsed between the two judgments must be taken into account in the limitation period for prosecution under Art. 97 SCC: It must be assumed that the statute of limitations for prosecution has continued to run as if the judgment in absentia had never existed. With this landmark judgment of 28 October 2019, the Federal Supreme Court has made a change to its case law on the interrupting effect of the statute of limitations for prosecution under Art. 97 para. 3 SCC. Consequently, it may be that the statute of limitations for prosecution has expired in the meantime since the commission of the offense and that the proceedings must be discontinued as a result. If the limitation period for prosecution has not yet expired, the court may, in the new judgment, take into account the lapse of time since the commission of the offence in reducing the sentence.

4 When the new judgment becomes final, the appeals lodged against a judgment in absentia and the decisions already issued in the appeal proceedings also lapse (Art. 370 para. 2 Criminal Procedure Code).

Bibliography

Message on the Unification of the Law of Criminal Procedure of 21 December 2005, BBl 2006 1085 ff.

Maurer Thomas, in: Niggli Marcel Alexander/Heer Marianne/Wiprächtiger Hans (eds.), Basler Kommentar zur Strafprozessordnung, 2nd ed.

Schmid Niklaus/Jositsch Daniel, Handbuch des schweizerischen Strafprozessrechts, 3rd ed. Zurich/St.Gallen 2017 (cit. Handbook).

Schmid Niklaus/Jositsch Daniel, Praxiskommentar zur schweizerischen Strafprozessordnung, Dike Kommentar, 3rd ed. Zurich 2018 (cit. Praxiskommentar).

Summers Sarah, in: Donatsch Andreas/Lieber Viktor/Summers Sarah/Wohlers Wolfgang (eds.), Kommentar zur Schweizerischen Strafprozessordnung, 3rd ed.