Facts
The complainant X. filed a criminal complaint against the respondent A. on 3 February 2010 for the alleged offence of unlawful recording of conversations under Art. 179ter SCC. In a penal order issued by the Sursee district attorney on 22 June 2011, A. was found guilty and sentenced to a fine and a penalty. A. was also ordered to pay the procedural costs of a total of CHF 3,140.– and to reimburse the private prosecutor X. CHF 3,397.35.
On appeal by A., the High Court of the Canton of Lucerne acquitted A. on 17 November 2011 and ordered X. to pay the first- and second-instance procedural costs of CHF 5,140.– as well as A.’s defence costs of CHF 7,999.25. X. then filed an appeal in criminal matters with the Federal Supreme Court and requested that the contested judgment be set aside in the costs aspect.
Considerations
Applicability of the CrimPC and party status of the complainant: The Federal Supreme Court first examines the applicability of the new Criminal Procedure Code (CrimPC) and finds that it applies due to the date of the first-instance judgment (22 June 2011). The complainant X. acquired the status of a private prosecutor through his criminal complaint, as the criminal complaint is equivalent to a declaration to participate in the criminal proceedings as a public or private prosecutor under Art. 118 para. 2 CrimPC. A waiver of the party status as a private prosecutor does not automatically result in the withdrawal of the criminal complaint (Art. 120 para. 1 CrimPC).
Cost liability in cases of application offences: The Federal Supreme Court analyses the provision on the cost liability of the private prosecutor in cases of application offences under Art. 427 para. 2 CrimPC. According to this provision, the private prosecutor may be ordered to pay the procedural costs if the proceedings are discontinued or the accused person is acquitted. However, this provision is dispositive and the court must decide according to law and equity (Art. 4 CC). The complainant did not actively participate in the proceedings and did not file any motions. Therefore, the first-instance procedural costs cannot be imposed on him, as he did not cause any costs. The lower court incorrectly exercised its discretion by basing the imposition of costs solely on the assertion that the complainant had provoked the recording of the conversation by threats.
Cost liability in appellate proceedings: In appellate proceedings, Art. 428 para. 1 CrimPC provides that costs are to be borne according to the success or failure of the parties. A party that does not file any…