TF, 13.03.2026, 7B_178/2026
Facts
A criminal investigation is underway against A.________ for professional fraud. He is suspected of having defrauded 23 victims of a total of 28.1 million francs through his companies. As his whereabouts were unknown, a national arrest warrant was issued in 2013, followed by an international one in 2022. He was arrested in the United Kingdom in November 2022 and extradited to Switzerland in September 2024, where he has since been held in pre-trial and subsequently security detention.
On July 22, 2025, the Zurich District Court sentenced A.________ to six and a half years in prison. A.________ appealed the judgment. His security detention was extended until November 22, 2025.
Due to an oversight, the detention order expired on that date without being renewed. This led to a series of confusing and erroneous judicial decisions: an initial attempt to extend detention by the Compulsory Measures Court was overturned by the Obergericht (Zurich Cantonal Supreme Court) due to a lack of jurisdiction. A second decision by the District Court, again ordering detention, was also overturned by the Obergericht on January 7, 2026, on the grounds that A.________'s right to be heard had been violated because no adversarial hearing had been conducted. The case was then referred to the competent chamber of the Obergericht for appeal proceedings.
On January 12, 2026, the presiding judge of that chamber held a hearing, at the end of which he ordered the immediate placement of A.________ in security detention, while acknowledging that his detention had been unlawful since November 23, 2025. A.________ is appealing this presidential order to the Federal Supreme Court, citing a further violation of his right to be heard, specifically his right to reply.
Legal Analysis
The Federal Supreme Court reiterates the fundamental principles guaranteeing the right to be heard, as enshrined inArt. 29 para. 2 of the Federal Constitution (Cst.),Art. 6 para. 1 of the European Convention on Human Rights (ECHR) andArt. 107 para. 1 of the Criminal Procedure Code (CPC). This guarantee includes the right to reply, which entitles any party to review the observations of the opposing party and to comment on them, regardless of whether those observations contain new or essential elements.
This right applies fully to detention review proceedings. A detention decision is only valid if the accused has previously had the opportunity to exercise their right to reply. A violation of this right generally results in the annulment of the contested decision, regardless of its substantive merits. A "cure" for the procedural defect before a higher court is excluded before the Federal Supreme Court, as it does not have full power to review the facts.
The Federal Supreme Court also clarifies the procedures for detention hearings. While an initial placement in security detention (without prior pre-trial detention) requires an oral hearing (Art. 31 para. 3 Cst.), extensions may be handled via written procedure if the accused has already been heard orally and the grounds for detention have not changed. However, if an oral hearing is conducted, it must be adversarial and respect the principle of equality of arms. One of the primary objectives of an oral hearing is precisely to allow the parties to respond directly and immediately to each other's arguments. The accused must therefore have the opportunity to respond to the oral submissions of the public prosecutor.
Finally, the Federal Supreme Court severely criticizes the format of the contested decision, which was written as a single sentence spanning over eight pages (a "Dass-Entscheid"). It reiterates that this format is only permissible for very short and simple decisions. For a complex case, this drafting style violatesArticle 112(1) of the Federal Supreme Court Act (FSCA), which requires clear and understandable reasoning, and constitutes grounds for annulment in its own right.
Application to the specific case
The Federal Supreme Court notes that, during the hearing on January 12, 2026, the judge of the lower court explicitly denied the appellant the right to respond to the prosecutor's arguments. The hearing minutes confirm that the judge stated the proceedings were "not adversarial" and that there would be "no second round of arguments and no closing statement."
By acting in this manner, the lower court flagrantly violated the appellant's right to be heard and right of reply. This violation is all the more serious given that the detention order was expressly based on arguments presented by the prosecutor during that same hearing, to which the appellant was unable to respond. The Federal Supreme Court emphasizes that the lower court committed this error even though another chamber of the same court had recently overturned a previous decision for the same reason (lack of adversarial proceedings).
Furthermore, the format of the contested decision ("Dass-Entscheid") is deemed entirely inappropriate and constitutes a violation of Article 112(1) FSCA, justifying its annulment on that basis alone.
However, the Federal Supreme Court rejects the request for the appellant's immediate release. According to established case law, procedural defects do not automatically lead to release if the substantive conditions for detention are potentially met. It will be up to the lower court to re-examine this matter in compliance with procedural rules.
Outcome
The Federal Supreme Court partially grants the appeal. It annuls the Obergericht's presidential order of January 12, 2026.
It formally finds that the appellant has been in unlawful detention since November 23, 2025.
The case is remanded to the lower court with instructions to conduct a new adversarial detention hearing without delay and to issue a new decision that meets formal reasoning requirements.
Due to the qualified and repeated violation of the right to be heard by the cantonal judicial authorities, the Federal Supreme Court exceptionally orders the Canton of Zurich to bear the court costs and pay legal fees to the appellant.
Silex newsletter published in collaboration with Claudia Malaguerra
