Facts
On 28 December 2017, the complainant filed a criminal complaint against the respondent 2 for (simple) bodily harm. The Public Prosecutor's Office in Baden summoned the complainant and the respondent 2 to a conciliation hearing on 5 June 2018. Since the complainant did not appear at the conciliation hearing, the Public Prosecutor's Office decided on 5 June 2018 not to proceed with the criminal investigation.
Against the decision not to proceed with the investigation dated 18 June 2018, the complainant appealed to the lower court on 28 June 2018 with an "application for a new hearing", requesting the resumption of the proceedings for bodily harm. The lower court dismissed the "appeal" on 14 December 2018 with costs.
Considerations
The Federal Supreme Court sets aside the decision of the lower court and remands the case to the Public Prosecutor's Office in Baden to assess the request for restoration. The Federal Supreme Court states that the lower court wrongly treated the complainant's application for the resumption of the proceedings as an "appeal". Instead, it should have forwarded the application as a request for restoration of the missed conciliation hearing to the Public Prosecutor's Office.
Furthermore, the reasoning of the lower court that the complainant was at fault for his absence, as he did not "timely notify" the reason for his absence before the conciliation hearing,…