Facts
On 10 February 1997, the company GPR Gérance, Placements & Réalisations SA (hereinafter: GPR) filed a criminal complaint for unlawful occupation of the premises it managed, located at no. 10, rue de AviA Ferme in Geneva. According to a police report dated 26 May 1997, the appellant L. was found on the premises on an unspecified earlier date. On 10 December 1998, A. acquired the property at a forced sale and filed a criminal complaint for violation of domicile on 11 December 1998, stating his intention to carry out renovation work as of 19 January 1999. The police informed the occupants that they were required to vacate the premises by 5 January 1999. On 4 January 1999, during the evacuation, [L.] was found hanging from a rope on the fourth floor. Furthermore, on 5 February 1999, Crédit Suisse First Boston filed a complaint for violation of domicile regarding another property occupied by [L.] in Geneva. The Police Court sentenced [L.] to 20 days’ suspended imprisonment for violation of domicile, a conviction upheld on appeal by the Criminal Chamber of the Court of Justice. [L.] filed an appeal in nullity with the Federal Supreme Court, which was dismissed.
Considerations
1. Effects of the criminal complaint in the context of a continuing offence: The appellant contested that the complaint filed by GPR in 1997 could extend to his conduct, arguing that he was only occupying the premises after the complaint was filed. The Federal Supreme Court recalls that violation of domicile constitutes a continuing offence (Dauerdelikt), the effects of which extend to all participants, including those who join the offence after the complaint is filed. Once validly filed, the criminal complaint covers all ongoing delinquent acts without temporal or personal limitation, unless the complainant expressly indicates otherwise. In the present case, there was no indication that GPR had limited its complaint in time or to the persons present at the time of filing. The appellant, although not present when the complaint was filed, admitted to having unlawfully occupied the premises for a certain period, which was sufficient to render him liable to prosecution. The shorter duration of his occupation compared to that of the other participants does not affect his guilt but may influence the assessment of his fault and, consequently, the sentence.
2. Standing to file a complaint after transfer of ownership: The appellant also contested the validity of the complaint filed by [A.], the new owner of the property, arguing that the latter could not take over GPR’s initial complaint. The Federal Supreme Court recalls that standing to file a complaint is determined by the status of aggrieved party within the meaning of Art. 28 SCC, i.e., the person whose legal interest is directly affected by the offence. Violation of domicile protects the freedom of domicile, which belongs to the person with the power to dispose of the premises, whether by virtue of a real or personal right. In the present case, [A.] had acquired the property by forced sale on 10 December 1998, which conferred upon him the status of aggrieved party as of that date. He was therefore entitled to file a complaint for violation of domicile, regardless of GPR’s initial complaint. The formal requirements for filing a complaint are governed by cantonal law and cannot be invoked in an appeal in nullity.
3. Unlawful nature of the occupation despite the change of ownership: The appellant argued that the occupation of the premises had become lawful after the transfer of ownership to [A.], claiming that the latter had not expressed his disagreement before the police-imposed evacuation date. The Federal Supreme Court recalls that violation of domicile may take two forms: unlawful intrusion into the premises against the will of the entitled party, or remaining in the premises despite an order to leave. In the present case, the initial occupation was unlawful, as it was against the will of the first owner, represented by GPR. The change of ownership did not legalise the occupation, since [A.] immediately expressed his disagreement by filing a complaint…