Facts

On 13 January 2018, the Federal Court issued a decision (6B_1153/2016) concerning an appeal in criminal matters lodged by the complainant (A.) against an order of the Public Prosecutor’s Office of the Republic and Canton of Geneva and the respondent (X.).

On 2 July 2015, the complainant filed a criminal complaint against X. for breach of trust, fraud and false information regarding commercial enterprises. She alleged having invested 1,000,000 USD in a Panamanian mining company (D. Corp) via a Swiss trust company (C. SA), managed by B., a close associate of X. The funds were allegedly never returned or replaced, and no dividends were paid.

On 10 August 2015, the Public Prosecutor’s Office issued a refusal to enter the matter (REM) on the grounds that the constituent elements of the alleged offences were not met. On 14 April 2016, the complainant applied for the reopening of the proceedings by submitting new evidence, including a hearing record dated 20 January 2016 relating to related facts. On 18 April 2016, the Public Prosecutor’s Office ordered the resumption of the preliminary proceedings pursuant to Art. 323 CrimPC, finding that the new evidence justified an investigation.

The respondent (X.) appealed against this order to the Criminal Appeals Chamber of the Geneva Court of Justice, which quashed the order of 18 April 2016 by a judgment of 6 September 2016. The complainant then lodged an appeal with the Federal Court, primarily seeking the annulment of this judgment and the order for resumption of the proceedings by the Public Prosecutor’s Office. The Public Prosecutor’s Office and the respondent submitted that the appeal should be dismissed.

Considerations

The Federal Court examined the admissibility of the appeal lodged by the complainant against the order for resumption of the preliminary proceedings, issued following a REM based on the non-existence of the constituent elements of the offences. The central issue was whether Art. 309 para. 3 CrimPC applied, which excludes appeals against an order for opening an investigation, by analogy with an order for resumption following a REM.

The Court recalled that the general principle in Swiss criminal procedure is that of the universality of appeals (Art. 393 CrimPC), but that certain decisions, in particular those relating to the opening or resumption of an investigation, are expressly excluded from appeal under Art. 380 CrimPC. Among these exceptions is Art. 309 para. 3 CrimPC, which provides that an order for opening an investigation is not subject to appeal. This exclusion is justified by the need to ensure procedural expediency (Art. 5 CrimPC, Art. 6 ECHR) and by the fact that an appeal at this stage could only concern the existence of sufficient suspicion, the reality of which the investigation is precisely intended to establish.

The Court emphasised the fundamental distinction between a REM and a dismissal. A REM is issued at the pre-investigation stage and does not confer on the parties the right to be heard (Art. 3 para. 2 TSOA. c CrimPC), unlike a dismissal, which is issued after a full investigation. In the present case, the resumption of proceedings following a REM, based on new evidence, is equivalent to an opening of an…