Right of the borrower to file a criminal complaint for damage to property and lack of entitlement to file a complaint in the case of mere right of use

Facts

Parties and procedural history:

The complainant X. was convicted by the Zurich District Court for violating traffic regulations and acquitted of the charges of damage to property. The Zurich-Sihl Public Prosecutor’s Office appealed and sought a conviction for damage to property. On 31 January 2017, the Zurich Higher Court convicted X. of damage to property and imposed a suspended fine and a fine. X. filed an appeal in criminal matters with the Federal Supreme Court against this judgment.

Facts of the case:

On 9 March 2014, X. is alleged to have left his vehicle on a motorway to discuss matters with the occupants of another vehicle. When they did not respond, X. punched the bonnet of the vehicle, causing a dent. The owner of the damaged vehicle (B.) did not file a criminal complaint. However, the driver of the vehicle (A.), who had borrowed the vehicle from B., filed a criminal complaint for damage to property.

Principal question: Is A., as the borrower of the vehicle, entitled to file a criminal complaint for damage to property?

Considerations

Entitlement to file a complaint under Art. 30 para. 1 SCC: The Federal Supreme Court first examines who is entitled to file a complaint under Art. 30 para. 1 SCC. In the case of non-personal legal interests such as ownership of an object, not only the owner but also any person whose legal sphere is directly affected by the act CO who bears a particular responsibility for preserving the object may be entitled to file a complaint. This applies in particular to tenants, borrowers CO other authorised users whose use of the object is impaired by the act (cf. BGE 118 IV 209 para. 3b; BGE 121 IV 258 para. 2b).

No impairment of the right of use: In the present case, A., as the borrower of the vehicle, was in no way impaired in her use of the vehicle by the dent. She was able to continue her journey without restriction. Therefore, there is no direct impairment of her right of use that would justify entitlement to file a complaint under Art. 30 para. 1 SCC. According to Art. 306 para. 3 CO, the borrower is only liable for preserving the vehicle in the case of non-conforming use, which was not the case here.

No…