Facts
On 29 September 2018, the border guard corps controlled A. and his vehicle in St. Margrethen, Switzerland, and discovered cocaine-contaminated money and prescription drugs. The public prosecutor's office of the canton of St-Gall launched a criminal investigation against A. for money laundering and violation of the drug law.
On 26 November 2019, A.'s lawyer, Me Magda Zihlmann, informed the investigation office of Altstätten that A. had died. The investigation office closed the case on 9 December 2020 and ordered the confiscation of the seized money. The decision was notified only to Me Zihlmann, who filed an appeal against the confiscation on behalf of A.'s heirs.
The court of appeal of the canton of St-Gall rejected the appeal for lack of power of attorney. Me Zihlmann then filed a criminal appeal with the Federal Court, requesting the annulment of the court of appeal's decision and the restitution of the seized assets.
Considerations
The post-mortem power of attorney : The Federal Court considered that post-mortem powers of attorney are in principle authorized. Article 35 paragraph 1 of the Code of Obligations (CO) provides that the power of attorney may be granted for a fixed or indefinite period, and that it may be revoked at any time. The Federal Court also considered that the post-mortem power of attorney may be valid if it is granted for an indefinite period or if it is revoked after the death of the principal.
The protection of heirs : The Federal Court emphasized the importance of protecting heirs in the context of confiscation of assets. It considered that heirs must be personally…