Inadmissibility of the appeal against a dismissal order for lack of victim status under the VSA in a case of an offence against Swiss emblems

Facts

In early 2003, Stuart Eizenstat, a former U.S. Under Secretary of State involved in the dormant accounts affair, published a book entitled "Imperfect Justice". The cover of this work depicts a Swiss flag with the federal cross covered by gold ingots, transforming the cross into a swastika. Several people, including appellant X., stated that they were offended by this representation and filed criminal complaints with the Office of the Attorney General of Switzerland for an offence against Swiss emblems (Art. 270 SCC).

On 28 February 2003, the Office of the Attorney General of Switzerland issued a dismissal order (Art. 100 para. 3 FCJA) on the grounds that the offence of an offence against Swiss emblems (Art. 270 SCC) did not appear to apply. It also referred the complaints to the Geneva authorities, since the Federal Act on the Protection of Public Armorial Bearings and Other Public Signs (CAPA) falls within the cantonal jurisdiction.

X. appealed to the Indictment Chamber of the Federal Supreme Court, seeking the annulment of the dismissal order and the referral of the case back to the Office of the Attorney General for an investigation to be opened under Art. 270 SCC. The Federal Supreme Court declared the appeal inadmissible.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal lodged by X. against the dismissal order issued by the Office of the Attorney General of Switzerland. It recalled that, pursuant to Art. 100 para. 5 FCJA, only the victim within the meaning of the VSA (Federal Act on Assistance to Victims of Offences) may appeal against such a decision. Victim status under the VSA requires a direct infringement of the bodily, sexual or psychological integrity of the person concerned.

In the present case, X. does not qualify as a victim under the VSA, since the offence of an offence against Swiss emblems (Art. 270 SCC) protects the honour and authority of the Swiss State, and not the personal interests of individuals. Consequently, X. cannot claim a direct infringement of his personal rights, which deprives him of the standing to appeal against the dismissal order. The Federal Supreme Court further noted that even if X. had suffered moral harm or offence, this would not suffice to confer victim status under the VSA.

The Federal Supreme Court also recalled that Art. 105bis para. 2 FCJA, which provides a remedy against acts of the Office of the Attorney General after an investigation has been opened, is not applicable in the present case, since the order under appeal was issued pursuant to Art. 100 para. 3 FCJA, before any investigation had been opened. The systematic structure of the law clearly distinguishes between the two remedies: Art. 100 para. 5 FCJA applies to dismissal…