Facts

Parties: Private plaintiff 2 (appellant), Upper Court of the Canton of Aargau (respondent), C. (defendant), District Court of Laufenburg (court of first instance).

Facts:

  • The District Court of Laufenburg convicted C. on July 2, 2021, of various offenses to a term of imprisonment and a fine.
  • The first-instance main hearing was adjourned on April 8, 2021, and the parties submitted their pleas in writing.
  • C. and the private plaintiff 1 filed an appeal, while the private plaintiff 2 rejected the defendant's appeal.
  • The Upper Court of the Canton of Aargau set aside the judgment and remitted the case to the first instance for the conduct of a lawful procedure.
  • The private plaintiff 2 filed an appeal in criminal matters against the remittal decision.

Main question: Is the appeal against the remittal decision pursuant to Art. 93 para. 1 lit. a FSCA admissible?

Considerations

The Federal Supreme Court examines ex officio whether a filed appeal is admissible. The appeal is only admissible pursuant to Art. 93 para. 1 lit. a FSCA against other independently initiated interlocutory and interim decisions if they can cause irreparable harm. This harm must be of a legal nature and cannot be remedied later by a final decision or another favorable decision. Pure factual disadvantages such as a prolongation or cost increase of the proceedings are not sufficient.

The contested remittal decision does not terminate the proceedings and does not concern either the jurisdiction or a recusal application. The Federal Supreme Court has repeatedly considered appeals against remittal decisions as admissible in previous judgments, if it was not evident that the first-instance proceedings suffered from a serious defect that could not be remedied in the appeal proceedings, or if a denial or delay of justice as a consequence of the remittal had been alleged.

The Federal Supreme Court has, however, clarified that the required irreparable legal disadvantage cannot be recognized as such merely because, at the time of an appeal against the final decision, the legal opinion of the appellate instance could no longer be reviewed. The possibility of a disadvantage is…