Facts
On March 25, 1972, an illustrated article entitled "Die Botschaft aus der Geisterwelt" was published in issue 13 of the magazine "Neue Illustrierte Revue", edited by Heinrich Bauer Verlag, in Hamburg. The article, which mainly concerned events that occurred in the "Abtei Thelema" in Stein/AR, was distributed in Switzerland.
Hermann Metzger, a writer in Zurich, and Anita Borgert, a director in Stein/AR, who were named in the article, brought a defamation action against editor-in-chief Dr. Walter Kunze, in Stuttgart, and journalist Horst Knaut, in Schwarzenbach/BRD.
The defense invoked the inadmissibility of the complaint due to the lack of territorial jurisdiction, as the offense would have been committed abroad. The defense also argued that, following the withdrawal of the complaint against Dr. Kunze, there was no longer a valid request for prosecution.
The Cantonal Court of Appenzell A.Rh. rejected both exceptions in a preliminary decision of September 11, 1975.
On appeal by Horst Knaut, the Higher Court of the Canton of Appenzell A.Rh. rejected the exception of inadmissibility and the exception of withdrawal of the request for prosecution.
The applicant filed a nullity appeal on November 5 and December 10/11, 1975, requesting the annulment of the Higher Court's decision and the referral of the case to the lower court for retrial, this time considering that the criminal proceedings should be closed due to the lack of territorial jurisdiction and the withdrawal of the request for prosecution.
Considerations
The SCC examined the admissibility of the nullity appeal. It considered that the nullity appeal in criminal matters is not admissible against the decisions of the higher cantonal courts on preliminary questions, when the decision of referral has a purely procedural character and the preliminary question has not been finally settled by the higher cantonal…