Facts

Parties: Accused person X. against the Public Prosecutor's Office of the Canton of Lucerne

Facts:

  • On November 26, 2013, the Lucerne Public Prosecutor's Office issued a penal order against X. for embezzlement and failure to surrender control plates.
  • X. received the penal order on November 29, 2013, and on December 6, 2013, his defense counsel filed an appeal by fax.
  • The Public Prosecutor's Office declared the appeal invalid and established the enforceability of the penal order.
  • X. filed a complaint, which was dismissed by the Lucerne Cantonal Court.
  • The Federal Supreme Court set aside the decision and referred the case back for further examination.
  • The Lucerne Criminal Court again declared the appeal invalid, and the Lucerne Cantonal Court dismissed X.'s complaint.

Main Issue: Does an appeal against a penal order filed by fax meet the written form requirement pursuant to Art. 354 para. 1 CrimPC? And does the strict application of this formal requirement violate the prohibition of excessive formalism pursuant to Art. 29 para. 1 Cst.?

Considerations

An appeal against a penal order must be made in writing pursuant to Art. 354 para. 1 CrimPC. An appeal filed by fax does not meet this formal requirement, as the signature must be affixed personally to the written document. The prevailing case law of the Federal Supreme Court provides that for submissions requiring written form, filing by fax does not suffice to meet the deadline. This also applies to appeals against penal orders, as the law explicitly requires written form.

The appellant objected to the instructions on remedies in the penal order, as it does not explicitly state that an appeal by fax is not considered written in the sense of the CrimPC. However, the Federal Supreme Court found that the instructions on remedies in the penal order meet the statutory requirements. It is to be expected that a legal representative knows and can interpret the relevant legal provisions. Therefore, further explanations regarding the written form requirement were not necessary.

The appellant argued that the Public Prosecutor's Office should have informed him that a postal submission was required and, if necessary, granted an extension pursuant to Art. 385 para. 2 CrimPC. However, the Federal Supreme Court found that it is to be assumed that professional legal representatives know the formal procedural rules. An obligation to provide information exists only for legally uninformed, non-represented parties. The strict…