Dismissal of the nullity appeal of the private prosecutor against the decision not to open criminal proceedings

Facts

An engineering company (Heierli AG) filed a criminal complaint and joined as a private prosecutor for alleged offences against the Federal Act against Unfair Competition and possibly the Federal Copyright Act. The investigating judge proposed to the criminal prosecution authority to dismiss the proceedings and not to prosecute any identified persons. The public prosecutor's office approved this proposal, which was thus ratified. The Cantonal Court's indictment chamber dismissed the appeal filed by the private prosecutor against this decision.

Considerations

According to case law, the private prosecutor does not have standing to file a nullity appeal to the SCC when the public prosecutor's office, although acting in a capacity other than that of a party, has nevertheless represented the public interest, for example by ordering the suspension of the proceedings or by participating in the decision not to prosecute. This also applies to offences prosecuted on complaint.

In the present case, the criminal proceedings were dismissed by a concordant decision of the investigating judge and the public prosecutor's office. By filing an appeal against this decision, the private prosecutor did not conduct the prosecution alone and without the participation of the public prosecutor's office…