Facts
On 21 May 2015, the State Secretariat for Economic Affairs (SECO), a federal authority of the Swiss Confederation, filed a criminal complaint against [A.] on suspicion of violating the Unemployment Insurance Act (UIA), alternatively of fraud and forgery. The Public Prosecutor’s Office of Basel-Landschaft dismissed the proceedings by order dated 7 April 2017. The SECO appealed against this decision, whereupon the Court of Justice of Basel-Landschaft set aside the dismissal by decision dated 11 July 2017 and instructed the Public Prosecutor’s Office to continue the proceedings. The Public Prosecutor’s Office again dismissed the proceedings (order dated 15 July 2019), this time on the grounds that the elements of fraud and forgery were not met and that the violation of the UIA had become time-barred. The SECO again appealed against this second dismissal order. However, the Court of Justice of Basel-Landschaft did not entertain the appeal by decision dated 29 October 2019 due to lack of standing. The SECO appealed against this decision to the Federal Supreme Court in criminal matters and requested that party status be granted in the appeal proceedings and that the Court of Justice be instructed to entertain the appeal.
Considerations
The Federal Supreme Court first examined the SECO’s standing to appeal under Art. 81 para. 1 FSCA. It found that although the SECO had participated in the proceedings before the lower court and its objection regarding the lack of standing was of a formal nature, it was admissible. The appeal in criminal matters was therefore to be examined on the merits.
The Court then addressed the question of whether the SECO could be considered a victim within the meaning of Art. 115 CrimPC and thus entitled to assert the rights of a private prosecutor. It referred to consistent case law according to which the State is only considered to be a victim if it has been directly and not merely in terms of public interests injured in its personal rights by the criminal offence. Administrative bodies such as the SECO, which act in a sovereign capacity, cannot simultaneously be the bearers of the legal interest for whose protection and administration they are responsible. The SECO acted here in a sovereign capacity, as it is responsible for labour market policy and the enforcement of the UIA. The Public Prosecutor’s Office represents the public interests in criminal proceedings. The SECO’s party status as a private prosecutor must therefore be rejected.
The SECO argued that it had been granted special party status under Art. 79 para. 3 GSSLA in conjunction with Art. 148a SCC. The Federal Supreme Court rejected this: on the one hand, Art. 148a SCC only entered into force on 1 October 2016 and therefore did not apply to the offences in question…