Facts
The Public Prosecutor’s Office of the Canton of Valais is conducting criminal proceedings against the accused [X.] and other co-accused for fraud, forgery of documents, participation in official offences and other alleged criminal offences to the detriment of the municipality of Zermatt. On 9 October 2012, the Public Prosecutor’s Office ordered a land register block to seize various properties owned solely or jointly by the accused. The accused filed an appeal against this order with the Criminal Court of the Canton of Valais, Single Judge of the Criminal Chamber, which dismissed the appeal by order dated 11 March 2013. The accused specifically alleged a violation of the right to be heard and requested the annulment of the contested decision or a remittal to the lower court for reassessment. The municipality of Zermatt (as private prosecutor) and the Public Prosecutor’s Office requested the dismissal of the appeal. The accused filed a rejoinder on 21 June 2013.
Considerations
The Federal Supreme Court first examined the admissibility of the appeal. It found that an irreparable disadvantage within the meaning of Art. 93 para. 1 lit. a FSCA is imminent and that the further requirements for a decision on the merits under Art. 78 et seq. FSCA are met. Furthermore, Art. 98 FSCA does not apply to criminal procedural coercive measures, as confirmed by the Federal Supreme Court in its consistent case law (see BGE 137 IV 122 para. 2 p. 125, 340 para. 2.4 p. 346).
The central issue in the examination was whether the cantonal lower court, by subsequently substituting the grounds for the seizure order, violated the accused’s right to be heard. In its order of 9 October 2012, the Public Prosecutor’s Office had based the land register block generally on Art. 263 et seq. CrimPC without specifying which type of seizure applied. The accused argued in his appeal that the grounds were insufficient and that the requirements for the individual types of seizure had not been addressed. The lower court did not rule on the legal basis but instead examined whether the seizure was permissible as substitute claim arrest under Art. 71 para. 3 SCC. This subsequent justification was first introduced during the cantonal appellate proceedings without the accused having had the opportunity to comment on it.
The Federal Supreme Court emphasised that the right to be heard (Art. 29 para. 2 Cst., Art. 107 para. 1 CrimPC) also includes the opportunity to comment on all aspects relevant to the decision. A subsequent substitution of grounds by the lower court introducing a new legal basis to which the accused could not respond violates this fundamental right. Moreover, the requirements and legal consequences of confiscation seizure under Art. 263 para. 1 lit. d CrimPC and substitute claim seizure under Art. 71 para. 3 SCC differ fundamentally. While confiscation seizure requires a link to the offence, substitute claim seizure serves to secure…