Dismissal of the complaint against the discontinuation of a criminal investigation for unlawful appropriation

Facts

The complainant [X.] accuses the defendant [Y.] of having taken possession of his vehicle with Polish license plates in November 2010 and thus having committed the crime of unlawful appropriation. The Public Prosecutor's Office of Winterthur/Unterland discontinued the criminal investigation against [Y.] on August 22, 2012. The High Court of the Canton of Zurich partially upheld (forgery of documents) and partially dismissed (unlawful appropriation) the complaint filed by [X.] on February 22, 2013.

[X.] lodges a criminal complaint and requests that the contested decision be annulled with regard to the dismissal of the complaint (unlawful appropriation), that the Public Prosecutor's Office of Winterthur/Unterland be obliged to reopen the criminal proceedings against [Y.] for unlawful appropriation, and that he be granted party compensation for the previous complaint proceedings.

Considerations

The Federal Court applies the law ex officio (Art. 106 para. 1 FSCA), but only reviews the decisions appealed to it for legal violations alleged by the complainants (cf. Art. 42 para. 2 FSCA). The question raised by the complainant regarding the admissibility of evidence may have an impact on the establishment of the facts, but is a legal question as it relates to the law of evidence in the CrimPC (Art. 139 et seq. CrimPC).

The complainant unlawfully recorded telephone conversations he had with his former girlfriend and the defendant. He does not claim to have obtained the consent of the other parties to the conversation before recording it, and explicitly admits that he was not authorized to record the telephone conversations. According to Art. 179 ter para. 1 SCC, anyone who, as a party to a conversation, records a non-public conversation without the consent of the other parties involved commits a crime.

The CrimPC only regulates the gathering of evidence by state criminal authorities. These authorities clarify all facts relevant to the assessment of the offense and the accused person ex officio and use all means of evidence suitable for establishing the truth…