Facts
The Federal Office of Police (Fedpol) opened an administrative criminal investigation on 2 March 2018 due to suspicion of fraud to the benefit of Postauto AG. On 12/13 and 15 March 2018, the Fedpol appointed former Federal Judge Hans Mathys and, as his deputy, Neuchâtel Cantonal Judge Pierre Cornu as the proceedings officer. After completing the investigation, the Fedpol filed an indictment against six individuals on 26 August 2020.
The Commercial Criminal Court of the Canton of Bern dismissed the administrative criminal case with a decision of 18 December 2020 and referred it back to the Public Prosecutor's Office, ordering that the results of all procedural actions conducted or directly ordered by Hans Mathys and Pierre Cornu themselves be removed from the case files, kept under seal until the conclusion of the proceedings, and then destroyed. The Commercial Criminal Court found that Hans Mathys and Pierre Cornu were external administrative individuals for whom there was no statutory basis for their appointment as proceedings officers.
The High Court of the Canton of Bern did not consider the appeal filed by the Fedpol against this decision. The Fedpol is now filing an appeal in criminal matters with the request to overturn the decision of the High Court and refer the matter back to it for a substantive decision.
Considerations
The appeal in criminal matters is admissible because no cantonal remedy is available and the contested decision does not conclude the administrative criminal case. The appellant is, as the participating administration in administrative criminal cases, generally entitled to appeal.
The Commercial Criminal Court dismissed the administrative criminal case under Art. 329 para. 2 CrimPC, as the requirement of an irreparable legal disadvantage was lacking. The lower court did not consider the appeal filed by the Fedpol against this decision. However, the case law allows for an appeal if the procedural decision…