The Verdict and Sentence did not happen immediately after the trial, which ended on 31st March 2017.
The judges requested additional psychiatric reports on the Defendant’s state of mind at the time of the killing. A provisional date at the end of June was set for the Sentencing.
The date was subsequently fixed for 9th August 2017 at 2pm. Arrangements were then made so that security at the Courthouse was ensured. TV screens were placed in viewing rooms so that the public could witness the proceedings.
Meilen District Court Verdict
On 9th August 2017, Alex’s killer was found guilty of intentional homicide. He was also found guilty of rape and of dangerous driving. He was sentenced to 12.5 years.
To have our devastation and grief publicly acknowledged by the Court meant so much for us as a family. The Sentence gave me the feeling that someone had stopped to say ‘I see you… we the judges, your community, see your pain’. The respectful treatment of victims of crime is a vitally important element in the coming to terms with what’s happened. Respect and recognition of the hurt and damage done to us was and continues to be, a fundamental need. Healing is difficult if this acknowledgment does not take place.
A sense of procedural justice is key in helping the co-victims of homicide to carry their loss.
The Court had sentenced B.v.V to 18 years for the homicide, reduced to nine years because of the mitigating circumstances — that he had taken drugs. Even though I did not, and still don’t understand the logic behind the reduction, that is the law in Switzerland. I should have liked more years in custody, especially as with good behavior, the nine years would be reduced by a third. Nonetheless, I felt the Court had been extremely respectful of us and had been meticulous in examining the evidence.
The verdict was important in helping us to step back from the judicial process and begin to truly integrate the grief into our lives.
On 11th August 2017, the NZZamSonntag newspaper in Switzerland published my article Der Tag, an dem mein Sohn umgebracht wurde (The day my son was killed). I felt the need to give Alex a voice. It was to prove to be a turning point for me as his mother in that I realized I could best honor his memory by writing about grief.
Appeal — Two years until the hearing
The killer appealed against the conviction and sentence. The media lawyer for B.v.V announced his client’s intention to do so whilst standing on the steps of the Meilen courthouse immediately after the Sentencing in 2017. Shortly afterward, the State Prosecutor, Herr Knauss, also made it be known that he would be appealing against the length of the jail term and would be asking for 16 years instead of 12.5.
My greatest fear was that the killer would be successful even though the decision of the District Court in Meilen had been extremely thorough and precise. As a lawyer, I knew that until the Judges pass Sentence, you simply don’t know the final outcome. Grief and the justice system make for a toxic mix, as the stress of the ongoing legal process jars against the possibility of integrating the loss in a way that is free of fear.
In October 2019, the newspapers 20 Minuten and Tagesanzeiger reported that the killer had changed lawyers and would now be represented by three private lawyers (instead of two private and one state-funded) having dismissed his state defense attorney. The article appeared a month before the Appeal hearing, which was set for 18th November 2019 at the Zurich High Court.
The article made the following points which are of interest:
B.v.V would be represented at appeal by three private ‘star’ lawyers. The first, Thomas Fingerhuth, who amongst other things was the lawyer representing Investigo AG, the company involved in Credit Suisse and top banker Iqbal Khan scandal. The second, Thomas Sprenger, who is the lawyer for Urs Schwarzenbach, art collector, and owner of the Hotel Dolder. Lastly, the well-known media lawyer Andreas Meili. The newspaper pointed out that all three lawyers were privately funded by family members of B.v.V.
18th November 2019 — Hearing at Zurich Appellate Court ‘Obergericht’
A full hearing before three judges took place on 18th November 2019 at the Court of Appeal in Zurich, Hirschengraben 15. The hearing started late, not at 8am as announced but instead, at 8.20am. The main reason for this was the number of people who wanted to sit in the public gallery. Many were law students, others were members of the general public. A large proportion did not manage to get into Court as there were not enough seats.
The killer’s defense team made opening submissions until 11.15am. The judges then paused for an early lunch. The hearing resumed at 1pm but was closed to the public as it related to the rape conviction. The defense lawyer representing B.v.V in the rape spoke for over three hours.
The main arguments of the defense team were that the intentional homicide conviction should be set aside completely. Basically, the lawyer pleaded that because his client had taken drugs he did not know what he was doing the night he killed Alex — the defendant could not be held responsible for his crime, and so consequently was not guilty. The Defense did not provide the Court with new evidence. The attorney also argued that at the very least, the sentence of nine years should be reduced by the Appellate Court, allowing for B.v.V’s immediate release from prison (having already been incarcerated almost five years) and pursue an out-patient drug rehabilitation from home. Regarding the appeal against the rape conviction, the defense attorney pleaded that the Zurich Court of Appeal did not have jurisdiction to hear the case (the alleged rape had taken place in London) and that they wanted to call two new witnesses. They did not present new evidence.
The State Prosecutor, Herr. Knauss replied to the defense team’s pleadings. He then made a very short 10-minute submission to the Court as State Prosecutor that the Sentence be raised to 16 years. His main argument was that the District Court had sentenced the killer to 18 years for the homicide yet reduced it to nine years on the basis that B.v.V had taken drugs before committing the crime. The Prosecutor felt this reduction was too great, especially as the killer continued to take no responsibility for killing Alex.
The hearing was concluded in the late afternoon with 27th November 2019 at 3pm being set for the Appellate Court’s decision.
By the time I got home, I was so exhausted I could hardly speak. For days, sleep eluded me. My hands shook. Both Alex’s sister and brother had to stay home, their traumatic grief making itself felt again in a debilitating and frightening way. Trying to understand what had happened to us as a family and seeing the killer again, whilst listening to the ‘sales pitch’ pleadings was hard. One night, I wrote a blog post. It sums up my experience of the Appeal hearing.
Zurich Appellate Court Decision of 27th November 2019
1. Not guilty of intentional homicide. The Court believed B.v.V was psychotic. Instead, he was found guilty under Article 263 Abs 1 and 2 StGB in conjunction with Art. 111 and given a three-year custodial sentence plus rehabilitation in a clinic. In a nutshell, Art.263 states:
“Verübung einer Tat in selbstverschuldeter Unzurechnungsfähigkeit”
a translation of which is, more or less, “Commission of an act in self-inflicted insanity” — a person is guilty of putting him/herself into a crazy mental state (e.g. through drugs or alcohol) rendering him/herself non-culpable in the eyes of the law. The maximum custodial sentence under Art.263 is three years.
The judges believed that B.v.V was psychotic and decided that he should not be held responsible for what he did. To be clear, this was not a reduction of the custodial sentence, nor a reduction of the District Court’s verdict to negligent manslaughter. It was NOT GUILTY to homicide, a 180° reversal of the original verdict.
It is best to refrain from commenting here what the Judges’ argument is based on and how they arrived at their decision. The result of their decision is that B.v.V is not guilty of killing Alex. As he has served five years already, he will be taken to a clinic as soon as a place is found for him, to complete his therapy (probably for one year) and then he is free.
This law is difficult to explain. Swiss criminal law under Article 263 is unusual in that it allows for someone to put themselves into an extreme drug or alcohol-induced state rendering them not responsible for what they do, no matter what they do — kill their wife in a drunken stupor, or kill a friend in a drugged up rage. Such a defendant can only be punished with a maximum of three years in prison, no matter what they have done and no matter how many times they have abused alcohol or drugs prior to their violent act. In effect, a defendant found guilty under Art.263 is only guilty of getting totally smashed and not of any act they commit whilst under the influence of drugs or alcohol. As someone has pointed out to me, were this law to exist in the U.S. or England, half the prisons would be empty.
2. Not guilty of Rape. The judges stated that even though the rape victim truly did believe she had been raped, in reality, she had only had the impression that she was being raped. They said that there had been no rape so the defendant was not guilty of rape. They did not address the question of her evidence nor the defendant’s refusal to answer questions at trial. I refrain from comment.
3. Guilty of reckless driving and breaking traffic regulations.
RESPONSE TO APPEAL COURT DECISION
To say that the Obergericht / Appellate Court decision came as a shock to both us as a family and the rape victim is to state the obvious. I made a short statement to the press as we left the court building. The Prosecutor also spoke to the media, as did the killer’s media lawyer. The press was quick to express their surprise, not only local Swiss newspapers and TV but also international journalists. The Times carried the headline ‘Aristocrat who killed friend in drugged frenzy goes free‘ and The Daily Mail gave the verdict a full-page. The story spread very quickly online such was its shock value.
On Saturday, 7th December 2019, the Blick published an interview I had given earlier in the week. It was front-page news. Hundreds of readers commented online; the ripple effects of such a ‘surprising’ decision in what was already a shocking homicide case were felt throughout the Swiss-german speaking part of the country and the story had the makings of a scandal. On the same day, the Scottish Record published a piece. I received numerous phone calls from the press but was too exhausted to take the matter further at this time.
On 10th December 2019, Still Standing published my article Fighting So My Son’s Killer Doesn’t Go Free
I did, however, consider the implications of Article 263. It seemed wrong that a killer could get away with a crime without being held responsible so long as he/she could make others believe that they didn’t know what they were doing at the time of the ‘act’ even if they had previous alcohol or drug-related violent episodes. To describe what the killer had done to Alex an ‘act’ made me shudder. In the words of the judges, it was an ‘outrageous act’. To my mind it was murder.
I investigated a little, read up on the law again, spoke to lawyers, got in touch with politicians. The law didn’t make sense to me. How drugged up did you have to be to NOT be responsible for a crime? Why was a less drunk defendant guilty of a crime whilst his partner, who had more alcohol in his blood, not guilty at all? What about domestic violence? If a violent alcoholic husband got so drunk that he strangled his wife, was he not responsible for killing her either? Apparently not, according to a Supreme Court case. The law seemed to be shielding violent drunks and drug addicts and not victims, their families, or society. How was it possible, that a person who abused drugs or alcohol, and had in the past been violent under the influence, could successfully use the defense of Art. 263? The law seemed to invite criminality instead of sobriety. And to add insult to injury, the consequence of B.v.V not being guilty was that the major part of the legal costs would now be borne by the Swiss taxpayer, not him.
Change the Law?
Perhaps a change in the law was overdue? Certainly, public opinion seemed to be on my side. I received messages and emails from strangers urging me to appeal, to fight on. Swiss citizens expressed incredulity and offered their respects, repeatedly mentioning the word ‘Kuscheljusitz’ (cuddly/soft justice). My inner warrior mama felt something had to be done. No loss parent should ever be told that no one was responsible for taking their child’s life when clearly, someone very much was.
For further information regarding the hearing, press coverage and geo-blocking, as well as a list of articles in the Press, please see Press Coverage.
See The Trial for an overview of the proceedings