Decision on the Discontinuation of Criminal Proceedings due to a Mountain Accident

Facts

On 23 August 2017, a rockslide occurred on the northeastern flank of Piz Cengalo in the Bondasca Valley, where eight persons who were on the hiking trail were reported missing. The Public Prosecutor's Office of Graubünden subsequently opened a criminal investigation, which it discontinued on 7 June 2019. The relatives of the missing persons filed a complaint against the discontinuation of the proceedings. The Cantonal Court of Graubünden dismissed the complaint. The relatives of the missing persons now file an appeal in criminal matters to the FSCA. They request that the decision of the Cantonal Court be set aside and the matter be remanded to the Cantonal Court for a new determination of the costs and compensation consequences, as well as to the Public Prosecutor's Office of Graubünden for the continuation of the criminal investigation.

Considerations

The FSCA sets aside the decision of the Cantonal Court and remands the matter to the Cantonal Court for a new determination of the costs and compensation consequences, as well as to the Public Prosecutor's Office of Graubünden for the continuation of the criminal investigation. The FSCA justifies its decision as follows: The relatives of the missing persons are generally entitled to file an appeal in criminal matters, as they can assert civil claims as relatives of the victim. However, their entitlement is limited to civil claims within the meaning of Art. 81 para. 1 let. b no. 5 FSCA, i.e. in particular claims for damages and satisfaction under Art. 41 et seq. CO. Public law claims, such as claims for state liability, cannot be asserted by way of adhesion in criminal proceedings. The FSCA considers it problematic that the lower court based its decision largely on the report of the Office for Forests and Natural Hazards (AWN) of 19 January 2018 and the expert report of 15 December 2017. The AWN report is an expert opinion within the meaning of Art. 182 et seq. CrimPC, for which the recusal provisions of Art. 56 CrimPC should have been observed. Since several employees of the AWN, who could be…