Facts
In this judgment, the Court of Cassation had to clarify the question of which law determines the legitimacy of the victim and the injured party for the federal nullity appeal in the criminal aspect. The decisive factor is the law that was in force at the time the contested decision was rendered, not the law in force at the time the appeal was filed.
The victim within the meaning of the Federal Act on Assistance to Victims of Offenses (OHG) is already legitimized for the federal nullity appeal based on Art. 8 para. 1 lit. c OHG. The injured party who is not a victim within the meaning of the OHG is legitimized for the federal nullity appeal pursuant to Art. 270 para. 1 of the Federal Criminal Procedure Act (BStP) in the version according to the OHG.
The private prosecutor and the private plaintiff are now only legitimized for the federal nullity appeal under the conditions mentioned in Art. 8 para. 1 lit. c OHG or Art. 270 para. 1 BStP.
Considerations
The victim is only legitimized to file legal remedies in the criminal aspect pursuant to Art. 8 para. 1 lit. c OHG if it has asserted its civil claims, as far as reasonable, in the criminal proceedings. However, it is legitimized against a dismissal decision regardless of whether it has asserted civil claims up to that point.
The legitimacy of the injured party for the federal nullity appeal pursuant to Art. 270 para. 1 BStP is also subject to the condition that the decision can…