No party status as private claimant in case of merger through private-law universal succession

Facts

The A. AG (appellant) became the legal successor of the E. AG through a merger. The E. AG was the victim of a criminal investigation for embezzlement and breach of fiduciary duty conducted by the public prosecutor’s office of the Canton of Bern against B., C. and D. The merger was registered in the commercial register on 25 March 2013, resulting in the dissolution of the E. AG and the transfer of its assets to the A. AG. On 18 April and 17 May 2013 respectively, the A. AG applied for admission as a private claimant in the criminal proceedings. The public prosecutor’s office rejected this application by decision dated 3 July 2013. The A. AG appealed this decision to the Higher Court of the Canton of Bern, which dismissed the appeal by ruling dated 3 January 2014. The A. AG then filed an appeal with the Federal Court on 10 February 2014, seeking the annulment of the contested decision and its admission as a private claimant.

Considerations

1. Principle of private claimant status and legal succession The Federal Court confirms that party status as a private claimant in criminal proceedings under Art. 118 para. 1 CrimPC is generally granted only to the directly injured party. Legal successors of an injured party are considered indirectly injured and generally cannot constitute themselves as private claimants unless an exception under Art. 121 para. 1 or 2 CrimPC applies. The regulation under Art. 121 CrimPC is exhaustive and regulates succession to the party status of private claimants comprehensively.

2. Wording and systematic structure of Art. 121 CrimPC Art. 121 para. 1 CrimPC, by its clear wording, applies only to natural persons, since legal entities do not die and have no entitled relatives within the meaning of Art. 110 para. 1 SCC. Art. 121 para. 2 CrimPC restricts private claimant status to persons who, by operation of law, have succeeded to the claims of the injured party (e.g. through legal assignment or subrogation). A merger under Art. 22 para. 1 MergA, however, results in an asset transfer by agreement and does not fall under legal subrogation. Therefore, an automatic transfer of party status does not occur.

3. Purpose and intent of the regulation The privilege granted to the closest relatives of a deceased injured party under Art. 121 para. 1 CrimPC is justified by the special affective closeness and solidarity among natural persons. Extending this regulation to legal entities…