Rejection of the former Chairman of the Board of Directors' standing to appeal following bankruptcy and deletion of the company

Facts

Parties and procedural history:

The complainant [A.] , former Chairman of the Board of Directors of [B. AG] , which went bankrupt on 21 July 2010 and was deleted from the commercial register on 26 January 2011, filed a criminal complaint against [X.] , [Y.] and [Z.] on 9 February 2011 for various asset-related offences to the detriment of [B. AG] . The public prosecutor's office of the Canton of Aargau discontinued the proceedings. The complainant filed an appeal against each of these discontinuation orders with the Higher Court of the Canton of Aargau, which did not consider the appeals. The complainant then filed an appeal in criminal matters with the Federal Supreme Court seeking the annulment of these decisions and an order for the Higher Court to hear the appeals.

Legal context:

The appeals concern the question of the complainant's standing to appeal as a private prosecutor following the discontinuation of the criminal proceedings by the public prosecutor's office. The complainant argues that the lower court wrongly denied him standing and thereby violated federal law.

Considerations

Admissibility of the appeal:

The Federal Supreme Court joined the three appeals pursuant to Art. 71 FSCA, by analogy with Art. 24 para. 2 lit. b FCPA, as they are based on essentially identical factual and legal grounds and involve the same parties and similar legal issues. The appeals are admissible as they are directed against final cantonal decisions that terminate the proceedings and thus qualify as final decisions within the meaning of Art. 90 FSCA. The complainant is entitled to assert formal legal violations, even if his standing in the matter itself is questionable.

Lack of status as an injured party of the complainant:

The complainant argues that he was directly injured in his rights by the offences reported. However, pursuant to Art. 115 para. 1 CrimPC, only a person who has been directly injured in their rights by the criminal offence is considered an injured party. The offences reported (e.g. embezzlement, fraud, breach of trust) protect the value of the assets as a whole or the power of disposal of the owner. The injured party is therefore the respective owner of the assets, in this case [B. AG] . Since this company had already been deleted from the commercial register at the time the criminal complaint was filed, the complainant could not act on its behalf. Moreover, he has not shown that the reported offences were directed against him as owner or owner of the assets. Indirect injury, for example by attempting to prevent the company's bankruptcy, does not establish the status of an injured party.

No standing as a private prosecutor:

The…