Facts
The appellant (A.) was convicted by the District Court of Alvaschein by penal order dated 29 May 1990 of removal pursuant to Art. 138 para. 1 SCC to a fine of CHF 200.--. The respondent (R.), a cattle herder of the Alpkorporation X., had filed a criminal complaint after A. allegedly removed wooden posts which R. had produced from communal wood and made available for the construction of a cattle fence on 1 July 1989. R. signed the formal criminal complaint on 28 September 1989. The District Court confirmed the penal order upon objection by judgment of 12 February 1991. A.s appeal was dismissed by the Court of Appeal Committee of the Canton of Grisons by judgment of 27 May 1991. A. filed a federal appeal for annulment requesting that the judgment be set aside and the proceedings be discontinued or that he be acquitted.
Considerations
The Federal Supreme Court first examined whether the respondent R. was entitled to file a complaint as an aggrieved party within the meaning of Art. 28 para. 1 SCC. According to the factual findings of the lower court, R. was the holder of possession of the wooden posts, which he intended to use for the construction of a fence. The lower court considered the removal of the posts to constitute an impairment of R.s interests in the use of the items and thus qualified him as an aggrieved party.
The appellant A. contested R.s right to file a complaint, arguing that R. had not held a position similar to that of an owner and had merely acted as a servant in possession. The Federal Supreme Court, however, held that the criminal law concept of possession does not correspond to the civil law concept of possession. R. exercised actual control over the posts, as he had produced them himself and used them for his work as a cattle herder. Thus, he was the holder of possession and not merely a servant in possession.
The Federal Supreme Court stated that the right to file a complaint pursuant to Art. 28 para. 1 SCC is not limited to the owner, but also…