Facts
Parties: A. (appellant), B. (accused), Public Prosecutor's Office of the Canton of Fribourg
Courts: Canton Court of Fribourg, Federal Supreme Court (II. criminal division)
Date: June 26, 2024
Facts: On September 20, 2022, [A.] filed a criminal complaint against his former girlfriend [B.], inter alia, for criminal abortion (Art. 118 para. 3 SCC). On April 12, 2023, he constituted himself as a private prosecutor. The Public Prosecutor's Office of the Canton of Fribourg discontinued the criminal proceedings against [B.] with a decision of August 17, 2023, and referred the civil claim to the civil court. The Canton Court of Fribourg did not enter into the appeal filed by [A.] against the discontinuance decision on November 29, 2023, insofar as it concerned the discontinuance of proceedings due to criminal abortion. [A.] applied to the Federal Supreme Court with an appeal in criminal matters to set aside the decision on the appeal regarding the non-admission and to instruct the Public Prosecutor's Office to resume the criminal proceedings regarding the criminal abortion and to bring it to trial.
Considerations
The appellant complains that the previous instance wrongly denied him party status with regard to the criminal abortion. As the father of the "killed fetus," he is to be considered a "victim" within the meaning of Art. 115 CrimPC and is already entitled for this reason to file an appeal against the discontinuance of the criminal proceedings due to criminal abortion. His standing to appeal also arises from Art. 116 para. 2 CrimPC.
The injured party can assert civil claims arising from the offense in an accessory manner in the criminal proceedings as a private prosecutor (Art. 122 para. 1 CrimPC). The same right is also available to the relatives of the victim to the extent that they assert their own civil claims against the accused person (Art. 122 para. 2 CrimPC). Injured is anyone who has been directly harmed in his rights by the offense, i.e., anyone who is the holder of the legal interest protected or at least co-protected by the violated criminal norm (Art. 115 para. 1 CrimPC). As holders of legal interests, persons in the legal sense, i.e., natural and legal persons, are eligible.
As a victim, the injured party is considered to be the person whose physical, sexual or psychological integrity has been directly impaired by the offense (Art. 116 para. 1 CrimPC). If the relatives of a victim assert civil claims, they are entitled to the same rights as the victim (Art. 117 para. 3 CrimPC). Relatives of the victim are his or her spouse, children and parents, as well as persons who are similarly close to him or her (Art. 116 para. 2 CrimPC).
According to Art. 118 para. 3 SCC, a woman who terminates her pregnancy after the twelfth week since the beginning of the last period, has it terminated or participates in any other way in the termination, without the conditions of Art. 119 para. 1 being fulfilled, shall be punished with imprisonment for up to three years or a fine. According to Art. 119 para. 1 SCC, the termination of a pregnancy is not punishable if, according to medical judgment, it is necessary to avert from the pregnant woman the danger of serious physical injury or a serious mental emergency. The danger must be the greater, the more advanced the pregnancy is. The protected legal interest of Art. 118 para. 3 SCC is human life during pregnancy. Included are basically all embryos and fetuses up to the point of becoming human, even those that are not viable.
The legal order determines who is a person. According to the legal…