Dismissal of the complaint against the discontinuation of a criminal proceeding due to theft and defamation

Facts

The complainant, [A.] , had filed a criminal complaint against [B.] on 30 March 2018 for theft, possibly of a minor nature, as well as defamation. She accused him of stealing two chairs and a saxophone from her and defaming her in an email by insinuating that she was receiving social welfare benefits. The Regional Public Prosecutor's Office of Emmental-Oberaargau discontinued the criminal investigation against [B.] on 26 March 2020. The complainant appealed against the discontinuation of the proceedings, which the Cantonal Court of Bern dismissed with a decision of 13 May 2020.

The complainant filed a criminal appeal and requested that the decision of the Cantonal Court of Bern of 13 May 2020 be set aside and that the Regional Public Prosecutor's Office of Emmental-Oberaargau be instructed to continue the proceedings against [B.] and to bring an indictment before the competent court. Alternatively, the decision was to be set aside and the matter was to be referred back to the lower court for re-examination.

Considerations

The Federal Court examined the complainant's entitlement to file a criminal appeal. The private party is generally only entitled to file a criminal appeal if the decision under appeal may affect the assessment of any potential civil claims arising from the offence (Art. 81 para. 1 lit. b no. 5 FSCA). The complainant argued that she had participated in the preceding proceedings as a private party and plaintiff, and that her requests had been rejected. The decision under appeal therefore clearly affected the assessment of her civil claims.

The Federal Court found that the complainant was entitled to file an appeal with regard to the accusation of theft, possibly of a minor nature, or embezzlement to the detriment of a relative or member of the household, as the right to file a criminal complaint was affected. With regard to the second accusation, i.e. the defamation reported, the complainant failed to show how she could have claims for damages or satisfaction against the defendant 2 within the meaning of Art. 41 et seq. CO.

Th…