Who hasn’t seen those YouTube videos in which two fast cars speed off side by side in front of a cameraman, who captures the scene on his mobile phone (usually also at the wheel)? The Federal Supreme Court calls this type of race an „acceleration contest“, better known colloquially as a „drag race“. It’s about driving fast on a mostly short, straight, public road.

This was (almost) the downfall of a group of three people. This video, recorded in the canton of Zurich, found its way to the public prosecutor’s office by unknown means. In his first interrogation, when one of the alleged racers and the cameraman were questioned, the public prosecutor’s office did not grant the second racer and his lawyer the right to participate. This meant that he could not ask any supplementary questions during the statements of the other two co-defendants. However, they incriminated him by saying that the video recording was made with the consent of all those involved.

However, at none of the subsequent hearings in which participation rights were granted did it come up again whether the omitted racing driver had agreed to the recording. The Federal Supreme Court ruled, after criticising the omitted racing driver’s compliance with the right to participate in the first interrogation, that this could not be used. The racer’s consent to the video recording could not be established, the recording was therefore unlawful and could not be used in court. However, the video was the only proof that this race had taken place.

Although the Federal Supreme Court referred the decision back to the High Court for a reassessment, it stated in the recitals that the consent was based solely on the first interrogation, which could not be utilised, and that an acquittal should be issued.

The conclusion to be drawn from this is that the public prosecutor’s office must comply with the right to participate in every interrogation or interrogation delegated to the police if it does not want to risk having to repeat the entire interrogation or risk it being unusable.