Facts
The complainant [X.] had filed a complaint with the Zurich-Limmat Public Prosecutor's Office against her sister [Y.] on 7 May 2009 for embezzlement pursuant to Art. 138 SCC. The Public Prosecutor's Office discontinued the proceedings on 28 March 2011 due to lack of grounds for indictment. The Cantonal Court of Zurich did not consider the complaint filed by [X.] due to lack of complaint legitimacy. [X.] filed a complaint with the Federal Court, requesting that the decision of the Cantonal Court be overturned and the matter be referred back to the lower court for re-evaluation and decision.
The complainant argued that she was not only the person who filed the complaint, but also, as a member of the community of heirs of her deceased parents, the co-owner of the assets whose embezzlement was in question. She was therefore affected as a private plaintiff.
Considerations
The Federal Court examined the complainant's complaint legitimacy. According to Art. 81 para. 1 FSCA, the following are entitled to file a complaint: anyone who has participated in the proceedings before the lower court or has not had the opportunity to do so and has a legally protected interest in the annulment or amendment of the decision being challenged.
The complainant had participated in the proceedings before the lower court and was formally aggrieved by the decision not to consider the complaint. She was entitled to file a complaint insofar as she claimed that the lower court had wrongly denied her the legitimacy to challenge the decision to discontinue the proceedings. The complaint is therefore admissible.
The Federal Court then examined whether the complainant could be considered a private plaintiff. According to Art. 382 para. 1 CrimPC, any party with a legally protected interest in the annulment or amendment of a decision may appeal. The complainant argued that she was directly damaged by her sister's embezzlement and was therefore entitled to file a complaint pursuant to Art. 382 para. 1 CrimPC.
However, the Federal Court came to the conclusion that the complainant was not a directly aggrieved person within the meaning of Art. 115 para. 1 CrimPC, as the criminally investigated financial transactions had taken place during the lifetime of the mother and father, and the complainant had not yet inherited from the parents. The lower court was therefore correct in assuming that the complainant was not a directly aggrieved person within the meaning of Art. 115 para. 1 CrimPC and could not constitute herself as a private plaintiff.
The…