Verdict, Sentence & Appeal

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’ even though we had not been addressed directly. The respectful treatment of victims of crime is a vitally important element in 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 in his appeal 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.

THE APPEAL

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 for 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 on what the Judges’ argument was based on and how they arrived at their decision. The result of their decision was that B.v.V was not guilty of killing Alex. As he had served five years already, he was taken to a rehabilitation / psychiatric clinic as soon as a place was found for him, to complete his therapy (probably for one year) and then he would be free. In short, he was no longer a convicted killer but instead guilty of a misdemeanor.

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 commenting on these points.

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 blow 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 brutal 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, and 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, was deemed to not be guilty at all? What about domestic violence? If a violent alcoholic husband got so drunk that he lost control, and in a psychotic rage strangled his wife, was he not responsible for killing her either?

The law seemed to be shielding violent drunks and drug addicts and not victims of crimes, their families, or society. How was it possible that a person who abused drugs or alcohol, and in the past had been violent whilst under the influence, could successfully use the defense of Art. 263 if he so chose? The law seemed to invite criminality instead of sobriety. It also dismissed the possibility that a defendant, who by all accounts was facing a lengthy prison sentence, might have the very clear and necessary motivation to lie precisely because pretending that he had been psychotic at the time of the crime afforded him the chance of an acquittal.

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 someone very much was. Once the shock at the Appeal Court decision had worn off, I gathered my strength and set about preparing for an appeal to the Supreme Court of Switzerland.

FEDERAL SUPREME COURT DECISION (24th June 2021)

On 24th June 2021, the Supreme Court sitting in Lausanne struck down the Zurich Appeal Court sentences in their entirety in both the homicide and the rape case against B.v.V. The decision was made public on 15th July 2021. It made headlines. The Supreme Court judges were highly critical of the Appeal Court decision and made it abundantly clear that the appeal court judges’ deliberations had been wrong.

We were immensely relieved that common sense and justice had prevailed… for the time being.

The outcome?

The case was sent back to the Appeal Court in Zurich for a re-hearing at an unspecified date in the future. That meant we would all have to go through yet another appeal hearing instead of simply having the original Meilen District Court sentence re-instated and that being the end of the matter.

Yet the question on everyone’s mind was: would B.v.V be re-arrested and sent back to prison?

Logic would dictate that a defendant who is guilty of intentional homicide and rape should be behind bars until he’s eligible for parole. That’s what we thought, and so did the State Prosecutor. Well, not so in this case. For some undisclosed reason, B.v.V was placed in a rehab clinic, and within a couple of months, applied to the Appeal Court to be allowed out ‘unsupervised’ on a regular basis. Really, you couldn’t make this stuff up. We and the Prosecution opposed the application — in my opinion, B.v.V needed to stay in prison, or at the very least within a correctional facility for criminals who were drug addicts, until the appeal process was over. He should most definitely not be wandering the streets.

So, it was a gut-punch to be notified in October 2021 that all our and the Prosecutor’s applications had been turned down — the Zurich Court of Appeal judges decided that BvV had been appropriately placed again in a drug rehab clinic for criminals in the idyllic Bern countryside and that he would be afforded recreational time ‘outside’ the facility notwithstanding our and the Prosecutor’s objections. The decision was based on their assessment of BvV as neither a flight risk nor a risk to society. Furthermore, we, as co-victims, had no right to know where he was during his days out. We would later find out, during the subsequent Appeal hearing, that BvV was attending history of art lectures at Bern University three mornings a week.

The decision on the part of the Zurich Appeal Court to allow BvV to leave the rehab facility unaccompanied does raise an interesting, albeit troubling point about prison sentences and what they are supposed to achieve.

Are convicted prisoners sent to prison as punishment for crimes committed? Do judges put dangerous people away to safeguard society? Should the rehabilitation of prisoners take precedence over all other interests when reviewing sentences imposed by courts of law?

There are as many arguments against rehabilitation as a philosophy of corrections as there are in favour of it.

Anyone interested in this subject can look to a multitude of research papers and statistics on recidivism. It’s a hugely important aspect when considering the core criminal justice topics of incapacitation, specific deterrence, and rehabilitation.

Yet, in this particular case, if I stand back and look at what BvV did to Alex, considering that he knew full well that he was a risk to others when taking drugs, that he had been warned by a psychiatrist that if he continued taking drugs he would eventually kill someone, that he had antecedents of violence and had attempted to kill at least on one occasion before, that he changed his story several times and always attempted to put the blame on Alex … I truly don’t believe that five years behind bars is a just punishment for taking my son’s life or for committing rape.

It may be that preventing further criminal behaviour can on occasion have a higher priority than exacting retribution yet there must be a balance, a sense of what’s right. Providing the victims and victims’ families with a sense of justice should, at the very least, carry some weight when judges and parole boards consider a criminal’s wish to re-enter society.

SECOND APPEAL HEARING

Zurich Appellate Court 30th & 31st May 2022

On 30th and 31st May 2022, three Zurich Appeal judges re-heard the appeal in the homicide and rape case against the defendant. No new evidence was presented in the homicide case. The Prosecutor asked for the original District Court in Meilen’s sentence to be increased, just as he had done at the first appeal before the Zurich Appellate Court in November 2019. The lawyers representing BvV, of which there were three, presented two contrasting arguments — (1) their client had acted in such a horrifically violent manner that the only reasonable conclusion was that he was psychotic at the time and so was not guilty (2) their client had already suffered tremendously as a drug addict, came from a broken home and that he was remorseful, and as such should have his sentenced reduced.

The judges were not swayed by the defense lawyers’ pleadings and stated clearly that they did not believe BvV’s version of events as he had changed his story several times. They pointed out that the ‘alien story’ on which the psychosis argument rested first surfaced over a year after Alex had been killed, and as such was not credible. In addition, following the strict guidelines set by the Federal Supreme Court in the judgment of 24th June 2019, the Appeal Court judges did not seek to apply or interpret Art.263.

On the afternoon of 31st May, the judges found BvV guilty of intentional homicide and rape, in effect reinstating the original sentence handed down in 2017 by the court in Meilen. The sentence was increased to 14 years (10 years for the homicide, 4 years for the rape) but they took off 2 years for BvV’s suffering at having had to deal with a rollercoaster of hearings and also for his public apology and willingness to stay off drugs. In their summing up the judges pointed out that the brutality of the crime meant that under Swiss law, the homicide was at the upper end of violence and as such would have incurred 18 years in prison had BvV not been under the influence of drugs. As I have stated before, I have serious reservations about the logic of this argument.

The relief of knowing that Alex’s killer had been found guilty was immense. I was also deeply affected by the rape conviction being re-instated and hugely relieved on behalf of the victim. Alex’s friends, who were in the courtroom throughout the proceedings, also expressed their relief and hugged effusively once we were outside.

The Lady Judge Addressed Me In Court

One of the judges, who happened to be the only woman on the bench, addressed me publicly after the sentencing. She said that she wished to reassure me that Alex had been present in their minds during their deliberations and that she and the other judges were aware of how difficult and painful the proceedings had to have been for me and my family.

As she spoke, tears began to well up in my eyes. In all these 7.5 years since Alex had been killed, no one in a position of judicial authority had ever taken the time to say anything to me regarding Alex’s death and the grief that I, as his mother, was obliged to endure. It was a profoundly moving moment and I am extremely grateful to the judge for having done so. If anyone who sits as a judge in homicide trials is reading this, please consider addressing the family and paying your respects publicly — it really can make a significant difference going forward to the co-victims and how they carry their loss. This is because they will probably feel that their grief has been acknowledged and their loss has been seen. If I had my way, all homicide trials would start with one minute’s silence out of respect for the victim, and believe me, such a gesture would mean so very much to us, the bereaved.

Following the verdict, I was inundated by messages, emails, and calls, many from journalists. In having ‘won’ the case against my son’s killer, I’d been catapulted into what felt like a new category, no longer ‘just’ a loss mother but now also a warrior who, against all the odds, succeeded in her fight for justice. Such is our society — everyone loves a winner.

But I was still exactly the same person as I had been 48 hours earlier. Perception, presentation, a good story … these colour how crime is reported, and how we, as individuals, respond to it.

Yet, even though I knew we’d won and I felt overwhelming relief that BvV had been found guilty, I was swept away by my grief. Alex was still dead. Nothing would change that. I had won, that was true, but my eldest son was still buried in a cemetery and I would never be able to see or hold him again no matter the outcome in the Zurich court.

The Daily Mail (Justice At Last For Briton) and The Times (Mother wins fight to return son’s killer to jail) reported the verdict, as did all the newspapers in German-speaking Switzerland, in particular Blick, NZZ, and Tagesanzeiger. A few days later, I was interviewed by Jenny Johnston for the Daily Mail How a mother finally got justice (warning: for some readers, the article may be triggering), and by Anamaria Ortiz for  El Mundo.

In November 2022, Tatler Magazine’s historical issue published a 6-page article on the case and my fight for justice, entitled ‘The Lost Boy’.

Following the Appellate Court decision, the lawyers representing the killer had 30 working days in which to appeal the 2nd Appeal Court verdict once the judgment was published. The full judgment was handed to me in October and time started ticking. At the time of writing, today 17th November 2022, the verdict has not yet been appealed, so the sentence will become binding within days.

And now? The next phase of this legal struggle approaches — the day the killer is released on parole — which, all things being equal, is once he has completed 2/3 of his sentence. The law may dictate that after serving 8 years (out of 12) of a custodial sentence justice has been served and that a convicted killer and rapist should be allowed to walk free again — but I do not agree. Do you?

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