Facts
The complainant, a self-employed lawyer, filed a criminal complaint on 8 May 2018 against a Swiss major bank and its unknown employees. He accused the bank of having exceeded the threshold to criminal offences in the course of clarifications regarding his continued employment after termination of his employment relationship. Specifically, he claimed that the bank had spied on his private and confidential sphere, used technical devices and contacted persons from his private and professional environment. According to his submission, these actions had led to him giving up his activity as a lawyer and to potential employers withdrawing their job offers.
The Public Prosecutor's Office See/Oberland did not take up the proceedings with a decision dated 24 January 2019 as there were no sufficient factual indications of a criminal offence. The complainant appealed this decision to the Higher Court of the Canton of Zurich, 3rd Criminal Chamber, which dismissed the appeal at its own cost on 28 May 2019. The lower court justified this on the grounds that the complainant's allegations were not sufficiently substantiated and that there was a lack of sufficient initial suspicion (Art. 310 para. 1 lit. a CrimPC).
The complainant complained in his appeal to the Federal Supreme Court in particular that the Public Prosecutor's Office had obtained files prior to issuing the decision not to take up the proceedings which primarily concerned his state of health and his mental condition. He also objected that his subsequently submitted supplementary submissions had not been taken into account and that he had been denied a hearing. He requested the annulment of the lower court's decision and the referral of the matter back to the Public Prosecutor's Office for the opening of criminal proceedings. In addition, he requested that the judgment not be published due to overriding confidentiality interests.
Considerations
The Federal Supreme Court first examined the complainant's standing to appeal. It clarified that a private prosecutor has a legally protected interest in appealing only if the contested decision could affect the assessment of their civil claims (Art. 81 para. 1 lit. b FSCA). Formal legal violations may also be asserted if they constitute a formal denial of justice. However, substantive objections to the assessment of evidence or the reasoning are inadmissible if the complainant is not entitled to appeal in the matter (cf. FSCR 141 IV 1 para. 1.1; 138 IV 78 para. 1.3).
The Court then addressed the question of whether the Public Prosecutor's Office was justified in refusing to open a criminal investigation. According to Art. 310 para. 1 lit. a CrimPC, a decision not to take up proceedings is justified if the factual indications required to open a criminal investigation are significant and concrete. The initial suspicion must be based on plausible facts from which it follows that there is a concrete possibility that a criminal offence has been committed (Judgment 6B_178/2017 of 25 October 2017 para. 2.2.2). The prosecution authorities have a certain margin of discretion in this regard, into which the Federal Supreme Court only intervenes with restraint (cf. FSCR 143 IV 241 para. 2.3.3; 138 IV 86 para. 4.1).
The complainant criticised that the Public Prosecutor's Office had obtained files prior to issuing the decision not to take up the proceedings which primarily concerned his state of health and his mental condition. The Federal Supreme Court stated that the investigation principle (Art. 6 para. 1 CrimPC) obliges the prosecution authorities to obtain files from other proceedings if this is necessary for the establishment of the facts. Art. 194 para. 1 CrimPC specifies this and allows the authorities to take into account all files necessary for the clarification of the facts. Furthermore, Art. 164 para. 2 CrimPC in conjunction with Art. 180 para. 2 CrimPC permits the examination of a person's background and personal circumstances insofar as this is necessary for the assessment of credibility. This was the case here since the facts were essentially based on the complainant's statements and his credibility had to be assessed.
The complainant also alleged a violation of his right to a hearing as…