Facts
This decision of the Swiss Federal Court concerns the question of the status as private prosecutor in the context of a brawl pursuant to Art. 133 SCC. The applicant X. has filed a complaint against the decision of the Public Prosecutor's Office of the Canton of Bern to discontinue the proceedings against A., one of the alleged participants in the brawl.
The facts are as follows: In the early morning hours of September 17, 2013, a brawl broke out in front of the entrance of club B. in C. D. was seriously injured by a stab wound and died a few hours later. X. is suspected of having killed D. and previously injured E. A. was initially accused of having participated in the altercation on the side of his friends D. and E. However, in the course of the investigation, the Public Prosecutor's Office concluded that A. had not been involved in the brawl, but had merely tried to mediate between the parties (X. and E.).
Considerations
The Federal Court has partially upheld X.'s complaint and referred the matter back to the cantonal instance for re-assessment. It was of the opinion that A. had the status of a private prosecutor pursuant to Art. 115 para. 1 CrimPC, as he was at least indirectly the bearer of the legal interest protected by the criminal offence of the brawl (Art. 133 SCC), namely physical integrity.
The brawl is indeed an abstract endangerment offence, but if a person is concretely endangered or injured, they have the status of a private prosecutor. Although the brawl primarily protects the…