Remission of the indictment for examination of a possible insurance fraud

Facts

The Federal Supreme Court consolidates two proceedings as they are closely related in subject matter. The Public Prosecutor's Office of Basel-City originally brought charges against Appellant 1 for arson or negligent causing of a fire. However, the Criminal Court of Basel-City remitted the indictment to the Public Prosecutor's Office to examine whether the fire may have been set with the consent of Appellant 2, and thus the elements of (insurance) fraud could be fulfilled. Subsequently, the Public Prosecutor's Office brought charges against Appellant 1 and Appellant 2 for fraud to the detriment of the [A.] -Insurance.

Considerations

The Federal Supreme Court considers the remission of the indictment by the Criminal Court of Basel-City pursuant to Art. 333 para. 1 CrimPC to be permissible. The court is entitled to remit the indictment for examination of another criminal offense if it is of the opinion that the facts described in the indictment could fulfill another criminal offense. A binding of the court to the previous, subsequently amended indictment cannot be derived from Art. 350 para. 1 CrimPC.

However, the appeal of Appellant 2 proves to be justified. The Criminal Court of Basel-City had already formed an opinion on the possible guilt of Appellant 2 in the remission decision of 23 September 2013, without criminal…