Facts

On 8 June 2016, the Office of the Public Prosecutor of the Republic and Canton of Geneva initiated criminal proceedings against X. for the following offences:

  • Breach of trust, fraud and unlawful appropriation;
  • Acquisition, on 30 March 2015, from C. and D. of the assets of the company E. SA, by providing as security boats that did not belong to him, followed by their subsequent resale;
  • Appropriation, from September 2013, of several boats, trailers and vehicles belonging to G.;
  • Reception, from H., of a boat and 300,000 Swiss francs intended for the acquisition of a boat of brand I., but misappropriation of these assets for other purposes without any consideration.

The complainants C., D. and H. withdrew their complaints on 5 September 2016 and 14 November 2016, respectively. On 22 May 2017, the Office of the Public Prosecutor dismissed the criminal proceedings against X. pursuant to Art. 53 SCC, allocating to him the procedural costs related to the complaints of C., D. and H. (1,305 Swiss francs), while leaving the costs related to the complaint of G. to be borne by the State (10% of the total costs).

On 14 July 2017, the Criminal Appeals Chamber of the Geneva Court of Justice annulled the dismissal order to the extent that it allocated procedural costs to X., and remitted the matter to the Office of the Public Prosecutor to award X. compensation for his defence costs in the preliminary proceedings.

The Office of the Public Prosecutor filed an appeal in criminal matters against this judgment, primarily seeking the conviction of X. to pay the procedural costs related to the complaints of C., D. and H., and alternatively seeking a partial indemnity for X. or the annulment of the judgment and referral of the matter to the cantonal authority for a new decision.

Considerations

The Federal Supreme Court recalls that the allocation of procedural costs in cases of acquittal or dismissal must respect the presumption of innocence, guaranteed by Art. 32 para. 1 FC and Art. 6 para. 2 ECHR. Such a conviction is only admissible if the accused has provoked the initiation of the proceedings or obstructed their course by culpable and unlawful conduct causally linked to the costs incurred. However, this case law does not apply in the present case, as the dismissal is based on Art. 53 SCC, which necessarily implies recognition of an unlawful act committed by the accused.

Art. 53 SCC falls within a framework where the perpetrator has committed an unlawful act, repaired the damage or compensated for the harm caused, thereby justifying the allocation of procedural costs to him. Unlike cases of acquittal or dismissal for lack of sufficient suspicion, a dismissal based on Art. 53 SCC is premised on the assumption that an offence has been committed, even if no penalty is imposed. The dismissal decision, although not constituting a conviction, does not infringe the presumption of innocence but implicitly recognises the unlawfulness of the act.

In the present case, X. committed acts of deception that led to the opening of the investigation and…