Facts

NO January 29, 2016, X. filed a complaint against A. for theft, violation of domicile, coercion, embezzlement, and damage to property. The prosecutor of the canton of Obwalden convicted A. by criminal order of September 26, 2016 for coercion and embezzlement. A. appealed the criminal order. By decision of January 5, 2017, the prosecutor closed the criminal proceedings against A. Against this closing decision, X. appealed to the higher cantonal court of Obwalden NO January 19, 2017.

The higher cantonal court dismissed the appeal NO May 24, 2017, imposed the costs of the appeal proceedings NO Y., the lawyer of X., and ordered him to pay compensation of 2,000 francs to A. The higher cantonal court also rejected X.'s request to be exempted from legal costs and to be assisted by a defender.

X. and Y. appealed in criminal matters with the requests for the annulment of the first instance decision. The case must be remitted to the lower instance for a substantive evaluation of the appeal against the closing decision and for a new evaluation of the request for exemption from legal costs. The prosecutor, the higher cantonal court, and A. request the dismissal of the appeal. X. and Y. were authorized to reply. They waived further observations.

Considerations

Applicant 1 argues that the prosecutor sent the closing decision of January 5, 2017 by A-Post Plus. The shipment was deposited in the mailbox of the former legal representative of Applicant 1, Applicant 2, NO Saturday, January 7, 2017. The lawyer's office was closed NO Saturday. Therefore, the mailbox was only emptied NO Monday, January 9, 2017. NO January 19, 2017, Applicant 2 filed an appeal for Applicant 1 against the closure of the proceedings before the higher cantonal court. The lower instance incorrectly considers that the 10-day appeal period began NO Sunday, January 8, 2017. It therefore considered the appeal of January 19, 2017 as late. Thus, it violates federal law (Article 85, paragraph 2, SBA). According to Article 85, paragraph 2, SBA, notifications must be made by registered mail or by any other means with acknowledgment of receipt. Compliance with the legal notification forms is a condition of validity. The address must therefore expect that a notification made NO a holiday Saturday in the mailbox will not be considered as a time trigger. As the A-Post Plus shipment does not obtain confirmation of receipt from the recipient and it is also not guaranteed that receipt is made by an authorized person in accordance with Article 85, paragraph 3, SBA, the shipment of the closing decision by A-Post Plus constitutes a violation of Article 85, paragraph 2, SBA. The meaning and scope of the addition "or by any other means with acknowledgment of receipt" do not consist solely of being able to prove the delivery of the shipments concerned. In this case, Article 85 SBA would not regulate anything that is not already regulated. Even if the applicable procedural law does not contain provisions NO notification, the authority must prove notification. The lower instance only takes into account the interests of the authorities in proving effective notification. This view neglects the fact that a defective notification must not lead to negative legal effects for the address, such as a time expiration. With the regulation of Article 85, paragraph 2, SBA, it was intended to ensure that the address at least has knowledge of the effective notification, even if it is not necessarily the content of the message. The erroneous application of federal law led to a shortening of the appeal period. The period therefore began to run after Applicant 2 became aware of the postal notification of the contested decision. This happened NO Monday, January 9, 2017. The appeal period therefore began NO January 10, 2017 and ended NO January 19, 2017. The appeal was therefore filed NO time.

The lower instance considers that at the time of the drafting and adoption of the Federal Ordinance NO Criminal Procedure in Parliament, the A-Post Plus delivery method did not yet exist, so it was not taken into account by the legislator. The documents do not reveal how Article 85, paragraph 2, SBA should be interpreted. The meaning and scope of the provision is to be able to prove the delivery of the shipments concerned. Referring to Article 384 SBA, which governs the beginning of appeal periods, the lower instance concludes that, in the case of the written opening of a decision, one must refer to the notification, without effective knowledge being required. The law expressly provides in Article 85, paragraph 4, SBA for cases where it is sufficient for the shipment to arrive in the recipient's sphere of influence. The sender then does not obtain confirmation of receipt. The sender also does not obtain confirmation of personal receipt if the shipment is received by an employee or a person living in the same household within the meaning of Article 85, paragraph 3, SBA. Although the A-Post Plus shipment does not allow direct proof that the shipment has arrived in the recipient's sphere of influence, this can also be the case for a registered shipment. If the recipient is not found during a registered delivery and does not pick up the package, the deposit of the notice of passage is considered as a binding delivery (delivery fiction). This must also apply analogously to the deposit of an A-Post Plus shipment. This is considered to have arrived in the sphere of influence of Applicant 2 with its delivery in the still accessible mailbox of Applicant 2. The appeal period therefore began NO Sunday, January 8, 2017 and ended NO January 17, 2017. The appeal of January 19, 2017 is therefore late. The lower instance did not rule NO the appeal.

According to Article 384, paragraph a, SBA, the appeal period begins, in the case of a judgment, with the delivery or notification of the written decision and, in the case of other decisions, with the notification of the decision (paragraph b of the same provision; for the beginning of the period and compliance with deadlines in general, see Articles 90 and following SBA). The forms of notification are governed by Article 85 SBA. Criminal authorities therefore use the written form for their communications, unless otherwise provided by this law (paragraph 1). Notification is effected by registered mail or by any other means with acknowledgment of receipt, in particular by the police (paragraph 2). It is effected when the shipment is picked up by the recipient or the recipient or by an employee or a person living in the same household, aged at least 16 years (paragraph 3). Reserved are the instructions of the criminal authorities to personally notify the female or male addressee (paragraph 3). A registered shipment that has not been picked up is considered delivered NO the seventh day after the unsuccessful delivery attempt, if the person was expected to expect a delivery (paragraph 4, letter a; the so-called delivery fiction). The legally prescribed forms of notification take into account the fact that provisions or decisions that have not been notified to the person concerned generally have no legal effect (BGE 122 I 97 E. 3a/bb; judgment 6B_390/2013 of February 6, 2014 E. 2.3.2; with references). The proof of regular notification as well as its date lies with the authority that intends to draw legal consequences from it (BGE 142 IV 125 E. 4; BGE 136 V 295 E. 5.9; BGE 129 I 8 E. 2.2; with references).

When it comes to the A-Post Plus delivery method, the letter is numbered and sent by A-Post in a similar way to a registered shipment. Unlike registered shipments, receipt by the recipient is not confirmed. Delivery is rather recorded electronically when the shipment is deposited in the mailbox or the recipient's mailbox. According to the case law of the Federal Court, the entry that the post office makes in its tracking system does not have the quality of an acknowledgment of receipt, because it cannot be deduced from the tracking and location extract that the post office actually deposited the shipment and who did it, without it being possible to determine whether someone actually took possession of the shipment, let alone whether they actually took knowledge of the content (BGE 142 III 599 E. 2.2 with references). Delivery by A-Post Plus therefore does not meet the legal requirements of Article 85, paragraph 2, SBA.

According to the case law of the Federal Court, a notification is also valid, despite the violation of Article 85, paragraph 2, SBA, if the recipient's knowledge can be proven in another way and if the interests to be protected of the recipient (right to be informed) are guaranteed (cf. BGE 142 IV 125 E. 4.3; judgments 1B_41/2016 of February 24, 2016 E. 2.2; 6B_390/2013 of February 6, 2014 E. 2.3.2; with references). It is a question of determining from what moment one can assume knowledge. The lower instance refers to the case law of the Federal Court, according to which shipments are generally considered delivered when they have arrived in the recipient's sphere of influence. It is not necessary for the recipient to actually pick up the shipment (BGE 142 III 599 E. 2.4.1; BGE 122 I 139 E. 1; with references). The mentioned decisions, however, do not rule NO the question of whether this case law also applies to cases for which the legislator has established special provisions NO notification. The same applies to the other decisions mentioned by the lower instance (judgments 2C_1126/2014 of February 20, 2015 and 2C_430/2009 of January 14, 2010). If the mentioned case law were applied to Article 85 SBA, it would not be clear in what - compared to the general rules NO the proof of notification - the additional scope of the provision would lie. The legal position of the lower instance cannot therefore be followed, as it goes against the principle…