Facts
The Public Prosecutor’s Office of the Canton of St. Gallen conducted a criminal investigation against the accused on suspicion of multiple fraud and other offences. By order dated 30 April 2019, the then competent Public Prosecutor’s Office March of the Canton of Schwyz ordered the freezing of an account belonging to the accused at a financial institution.
The account freeze was initially subject to a secrecy obligation imposed on the bank, which applied until the end of June 2019. On 13 June 2019, the bank was released from the secrecy obligation, allowing it to inform the accused of the account freeze. On 17 June 2019, a lawyer from the firm representing the accused called the case management to inquire about the reason for the account freeze. The Public Prosecutor’s Office stated that two fraud reports had been filed and that an account freeze had been ordered, without however disclosing the date of the order or further details.
The accused only submitted a request for access to the files on 28 June 2019 and filed an appeal against the account freeze with the Indictment Chamber of the Canton of St. Gallen on 19 July 2019. The latter did not take the appeal into consideration with a decision dated 25 September 2019, as it considered the right of appeal to have been forfeited. The accused appealed against this decision with a complaint dated 6 November 2019 to the Federal Supreme Court, requesting that the decision not to take the appeal into consideration be set aside and that the lower court be instructed to take the legal remedy into consideration.
Considerations
The Federal Supreme Court examined whether the appeal period against the account freeze had been complied with in a timely manner. Under the CrimPC, the appeal period against written orders served begins upon their delivery to the person concerned (Art. 384 lit. b CrimPC). Account freezes must be ordered in writing as seizure orders and served on the account holder against receipt of confirmation (Art. 263 para. 2, Art. 266 para. 1 and para. 4 CrimPC). Even if the account freeze is initially kept secret, it must be served in writing on the account holder, together with information on legal remedies, after the secrecy obligation has been lifted.
The lower court argued that the appellant had already become aware of the account freeze through the telephone call on 17 June 2019 and was therefore required to immediately request access to the files and file an appeal. The Federal Supreme Court rejected this view. An informal telephone call does not constitute service within the meaning of the CrimPC that triggers a time limit. The appellant could only become aware of the details relevant to the appeal after formal service of the order dated 30 April 2019 on 10 July 2019 – or through access to the files. The appeal filed on 19 July 2019 was therefore timely.
The Court emphasised that the CrimPC generally requires written form for communications by the criminal authorities (Art. 85 para. 1 CrimPC). Oral communication is not sufficient to trigger time limits, particularly if…