Prosecution of Members of the Supreme Executive and Judicial Authorities of a Canton

Facts

The present case concerns the prosecution of members of the supreme executive and judicial authorities of a canton. Pursuant to Art. 366 para. 2 lit. b of the Swiss Criminal Code, the cantons may make the prosecution of these persons dependent on a preliminary decision by a non-judicial authority. This authority may then also refrain from conducting criminal proceedings for non-criminal, state-political reasons.

The Federal Supreme Court's Court of Cassation had to assess in this case whether the competent cantonal authority had made the decision on the admissibility of criminal prosecution in an arbitrary manner.

Considerations

The Federal Court states that Art. 366 para. 2 lit. b of the Swiss Criminal Code is based on the fundamental idea that the supreme executive and judicial authorities are primarily responsible to the superior instance for their official activities. This superior instance shall have the discretion to decide whether the initiation of criminal proceedings is justified due to an alleged misconduct in office.

At the federal level, an analogous regulation applies pursuant to Art. 366 para. 1 of the Swiss Criminal Code. The Federal Responsibility Act of March 14, 1958 leaves it to the discretion of the Federal…