Facts

On 15 April 2014, the Geneva Public Prosecutor’s Office initiated criminal proceedings against two municipal employees, including Employee A, for aggravated breach of trust (Art. 138 para. 2 SCC) and forgery of documents (Art. 251 SCC). They were accused of embezzling municipal assets amounting to CHF 622,000 between 2000 and April 2014 and falsifying municipal accounting records. The co-defendant admitted to having embezzled between CHF 400,000 and CHF 450,000, while A. acknowledged being aware of the acts without personally benefiting from them, claiming to have repaid salary advances he had taken.

On 15 April 2014, the Public Prosecutor’s Office ordered the sequestration of the two defendants’ bank assets, including CHF 37,680 belonging to A. On 5 June 2014, the Prosecutor refused to lift the sequestrations, a decision upheld by the Criminal Appeals Chamber on 4 September 2014. On 9 October 2014, an income protection insurance paid a retroactive capital sum of CHF 62,663.40 into A.’s sequestered account, as he was totally incapacitated for work. On 11 February 2015, the Public Prosecutor’s Office rejected A.’s request for partial lifting of the sequestrations, a rejection confirmed by the Criminal Appeals Chamber on 9 April 2015.

On 11 May 2015, A. filed an appeal in criminal matters against this ruling, seeking annulment of the cantonal judgment and partial lifting of the sequestrations to the amount of CHF 3,848.15, or failing that, referral of the matter for a new decision. The Federal Supreme Court partially upheld the appeal by annulling the cantonal judgment insofar as it confirmed the sequestration of all income protection insurance benefits paid from 9 February 2015 onwards, while upholding the remainder of the contested ruling.

Considerations

The Federal Supreme Court examined the legality of the criminal sequestration imposed on Employee A., distinguishing between two types of sequestration: one aimed at covering procedural costs (Art. 268 CrimPC) and one intended to guarantee a potential compensation claim (Art. 71 para. 3 SCC).

For sequestration to cover costs, the authority must necessarily take into account the defendant’s income and assets, excluding non-seizable values under Arts. 92–94 DEBA, in order to respect the principle of proportionality and the constitutional right to the minimum subsistence level (Art. 12 Const.). This requirement stems from the exclusive purpose of this type of sequestration, which is to secure the recovery of procedural costs. In contrast, for sequestration to guarantee a compensation claim, the authority is not required to conduct this assessment when ordering the sequestration, as this provisional conservatory measure aims to preserve assets that may be confiscated or returned to the injured party. The proportionality of this measure is then assessed in light of the presumed extent of the damage and the likelihood of confiscation or a compensation claim.

In the present case, the Criminal Appeals Chamber confirmed the sequestration solely to guarantee a potential compensation claim, finding that the seized amount (CHF 168,845 as of 15 April 2015) was proportionate to the presumed harm (between CHF 172,000 and CHF 222,000). The Federal Supreme Court held that this decision did not violate federal law, as the cantonal authority was not required to examine compliance with the minimum subsistence level at this stage, unless the measure was manifestly…