No standing of SBB AG to lodge an appeal for unauthorized entry into railway operating area pursuant to Art. 86 para. 1 RailA

Facts

The Public Prosecutor’s Office of the Canton of Valais issued a penal order against Defendant A. on 22 September 2016 for an offence against Art. 86 para. 1 Railway Act (RailA). On 30 May 2016, A. had crossed railway tracks without authorization at Brig station, forcing the train driver to apply an emergency brake. SBB AG, represented by its Damage and Criminal Law Centre, had filed a criminal complaint. The penal order was based on the report of the cantonal police, which established an endangerment of railway operations due to the unauthorized crossing of the tracks.

The District Court of Brig-Östlich Raron-Goms acquitted A. on 1 June 2017, as the location in question was not a generally restricted railway operating area but a level crossing. The Court of Appeal of the Canton of Valais overturned this judgment on 16 November 2018 and convicted A. to a fine of 100 CHF. It qualified the location as an officially used cart crossing, which was not publicly accessible and therefore required permission.

A. filed an appeal in criminal matters with the Federal Supreme Court and requested the quashing of the lower-instance judgment and the confirmation of the first-instance acquittal. SBB AG requested the dismissal of the appeal and argued that it was aggrieved by the first-instance decision and, as an injured party, was entitled to lodge legal remedies. The Public Prosecutor’s Office did not submit any comments.

Considerations

The Federal Supreme Court first examines the standing of SBB AG to lodge an appeal pursuant to Art. 382 para. 1 CrimPC. The decisive factor is whether SBB AG qualifies as an “injured party” within the meaning of Art. 115 para. 1 CrimPC. A person is considered injured if their rights have been directly violated by the criminal offence. This requires that the protected legal interest of the violated criminal provision also encompasses individual interests.

Art. 86 para. 1 RailA penalizes the intentional unauthorized entry, driving or impairment of the railway operating area. The Federal Supreme Court qualifies this offence as an abstract endangerment offence that primarily protects public interests – namely the safety of railway operations. Although the provision indirectly also serves the interests of railway companies, this indirect effect is not sufficient for the recognition of the status as an injured party. SBB AG is therefore not entitled to act as a private prosecutor or to lodge legal remedies.

SBB AG cannot rely on liability-related consequences, as Art. 115 CrimPC does not require a civil law…