Recognition of the standing of a welfare authority as a private prosecutor in social welfare fraud denied

Facts

The Welfare Authority of Ingenbohl filed a criminal complaint against [A.] on 9 June 2015 for social welfare fraud, alleging that he had concealed income. The Public Prosecutor’s Office of the Canton of Schwyz confirmed the admissibility of the files and recognised the welfare authority as a private prosecutor (decision of 25 July 2017). [A.] appealed this decision to the Court of Appeal of the Canton of Schwyz, which, by order of 19 February 2018, revoked the welfare authority’s standing as a private prosecutor. The welfare authority then filed a criminal appeal with the Federal Supreme Court and sought reinstatement of its standing. [A.] requested dismissal of the appeal or, in the alternative, a refusal to enter into the matter.

Considerations

1. Admissibility of the appeal The welfare authority’s appeal is admissible under Art. 78 para. 1 FSCA and Art. 80 FSCA, as it asserts a legally protected interest in the annulment of the contested decision and the latter constitutes an appealable final decision (cf. BGE 139 IV 310 para. 1 p. 312). The admissibility of the files was not at issue in the proceedings, as the respondent did not challenge it.

2. Standing as a private prosecutor Standing as a private prosecutor under Art. 118 para. 1 CrimPC requires the status of an aggrieved person. An aggrieved person is one whose rights have been directly violated by the criminal offence (Art. 115 para. 1 CrimPC). In the case of offences against collective interests, merely secondary or indirect harm is insufficient. The State or its administrative bodies are considered aggrieved only if their personal rights have been violated, not in the case of purely sovereign action (cf. BGE 141 IV 454 para. 2.3.1 p. 457).

3. Sovereign action of the welfare authority The welfare authority acts in a sovereign capacity when granting social welfare and asserting claims for reimbursement. It performs public duties and is not personally aggrieved; rather, it acts in the public interest. Therefore, it does not qualify as an aggrieved person within the meaning of Art. 115 para. 1 CrimPC. Consequently, it cannot be granted standing as a private prosecutor.

4. No statutory basis for sui generis standing Under Art. 104 para. 2 CrimPC, the Confederation and the Cantons may…