No party status and right to appeal of the mother as shareholder in cases of crimes against her son

Facts

Parties and procedural history:

The complainant (mother) filed a criminal complaint on 15 October 2010 against the guardian ([Y.] ) and the responsible person of the supervisory authority ([Z.] ) for abandonment (Art. 127 SCC) and aggravated assault (Art. 122 SCC) to the detriment of her son [W.] (born on 22 September 1977). She alleged that the two had not adequately cared for her son, in particular by the guardian having evicted him from his apartment in January 2001, which had led to serious physical and psychological health damage. The complainant requested that she be granted the status of private CO subsidiary prosecutor.

The Public Prosecutor’s Office of the Canton of Lucerne discontinued the criminal proceedings by order dated 24 January 2011, as the alleged criminal offences were not fulfilled in either objective CO subjective terms. The order of discontinuation was not served on the complainant, as the Public Prosecutor’s Office did not qualify her as a private prosecutor.

The complainant appealed the order of discontinuation to the High Court of the Canton of Lucerne. By decision dated 25 January 2012, the High Court did not admit the appeal, as the complainant was not qualified as an aggrieved party and thus had no party status.

The complainant then filed an appeal in criminal matters with the Federal Supreme Court on 31 January 2012. She requested that the High Court’s decision be set aside, that she be granted the status of private prosecutor and that the order of discontinuation be served on her. She also requested the resumption of the investigation. The High Court of the Canton of Lucerne requested that the appeal be dismissed, to the extent that it was admissible. The other parties involved ([Y.] , [Z.] and the Public Prosecutor’s Office) did not submit any statements.

Considerations

1. Admissibility of the appeal:

The Federal Supreme Court first examined the admissibility of the appeal in criminal matters under Art. 78 et seq. FSCA. The order of discontinuation dated 24 January 2011 meant that the Criminal Procedure Code (CrimPC; SR 312.0), which entered into force on 1 January 2011, applied. The complainant argued that the High Court had violated federal law by not admitting the appeal. The Federal Supreme Court confirmed that she was entitled to raise this objection, as she had participated in the proceedings before the lower court (Art. 89 para. 1 FSCA). However, the subject matter of the dispute was limited to the question of the violation of federal law, not the resumption of the investigation.

2. Party status and right to appeal of the complainant:

The complainant argued that she had been severely affected by the actions and omissions of the persons responsible for guardianship and supervision. She contended that, due to this indirect involvement, she was entitled to the status of private prosecutor and should have been informed of the possibility of private prosecution.

The Federal Supreme Court held that party status in criminal proceedings under Art. 382 para. 1 CrimPC is linked to party status. A party is, in particular, the private prosecutor, who, under Art. 104 CrimPC, includes the aggrieved party who wishes to participate in the criminal proceedings (Art. 118 para. 1 CrimPC). Under Art. 115 para. 1 CrimPC, the aggrieved party is the person who has been directly injured in their rights by the criminal offence. In the case of offences protecting individual legal interests, this is generally the holder of the protected legal interest. In the present case, the allegations of aggravated assault (Art. 122 SCC) and abandonment (Art. 127 SCC) concerned the complainant’s son, not herself. Indirect involvement of the complainant did not make her the holder of the protected legal interests.

3. No right to appeal as a…