Facts
{ "title": \"Admissibility of seizure of substitutes from criminal offences to secure confiscation despite bankruptcy proceedings against the offender’s assets", \"facts": \"The appellant (injured party) opened an account and a securities portfolio with F. AG (later declared bankrupt) on 26 June 1997. On 23 June 1998, she ordered the closure of the account, whereupon F. AG was to arrange for the transfer of the securities to an account at X. Bank. Instead, the securities were sold on 6 July 1998, and the proceeds (a total of US-$ 3'447'988) were used in part to settle debts of F. AG or paid out to other creditors. On 24 July 1998, bankruptcy proceedings were opened against F. AG. The appellant filed a criminal complaint and applied for the seizure of the assets to secure subsequent confiscation and restitution. The district prosecutor’s office and later the public prosecutor’s office of the Canton of Zurich rejected the application. The appellant filed a constitutional appeal with the Federal Court.
", \"reasoning": \"1. Admissibility of the constitutional appeal The appellant is entitled to file a constitutional appeal as an injured party, since she has a legally protected interest in the ordering of a seizure to secure her claims arising from the criminal offence. The appeal is directed against the rejection of a precautionary measure (seizure), not against a final judgment. Irreparable harm exists, as the seizure serves to secure assets that might otherwise be lost to the injured party. The appeal for annulment to the Court of Cassation is inadmissible, since this concerns a precautionary measure.
2. Right to be heard and duty to state reasons The appellant argued that the public prosecutor’s office had denied her right to be heard by incorrectly reproducing a scholarly opinion (Niklaus Schmid). The Federal Court clarified that the duty to state reasons does not require the authority to reproduce every scholarly opinion exactly as the author intended. What is decisive is that the authority sets out its actual legal view in the reasons for the decision. Since the public prosecutor’s office correctly reproduced its view in the reasons for the decision, the right to be heard was not violated.
3. Confiscation of substitutes and bankruptcy attachment The appellant claimed that the public prosecutor’s office had misidentified the subject matter of the proceedings and arbitrarily weighed the interests. The Federal Court examined the admissibility of the seizure of substitutes (proceeds from the sale of the securities) to secure confiscation under Art. 59 para. 1 SCC. It found that both original assets and true and false substitutes may be confiscated, provided they are still in the possession of the offender or beneficiary and can be clearly identified. The seizure of such assets takes precedence over the bankruptcy attachment, since it serves to secure confiscation. However, a seizure to secure a compensatory claim (Art. 59 para. 2 SCC) is no longer admissible after the opening of bankruptcy proceedings, as it does not create a preferential right (Art. 59 para. 2 subpara. 3 SCC).
4. Arbitrary establishment of facts The public prosecutor’s office failed to examine whether the proceeds from the sale of the securities (US-$ 2'380'000) were still present in the bankruptcy…