Facts

Parties and procedural history:

The complainant, a lawyer, acted as official defence counsel in a high-profile criminal proceeding. Following the main hearing of 2 August 2023, two media outlets ([G.] and [H.] ) published online articles about the proceedings, to which reader comments were added. On 15 August 2023, the complainant filed a criminal complaint against four employees of [K. AG] (as persons responsible for the articles) and against seven authors of reader comments for defamation (Art. 173 SCC) and other offences. On 17 August 2023, he expanded the complaint to include the charge of disobedience to an official order (Art. 292 SCC) on the grounds that the comment function had not been deactivated despite a court order.

The Zurich-Sihl Public Prosecutor’s Office discontinued the investigation against the four media representatives and the unknown perpetrators on 29 November 2024. The complainant appealed this decision to the Higher Court of the Canton of Zurich, which dismissed the appeal by decision of 13 May 2025. On 23 June 2025, the complainant filed a criminal appeal with the Federal Supreme Court against this decision and requested that the decision be set aside and the matter referred back to the Public Prosecutor’s Office for completion of the investigation and a decision on the merits.

Considerations

1. Admissibility of the appeal:

The Federal Supreme Court examines the appeal ex officio for admissibility (Art. 29 para. 1 FSCA) and requires sufficient grounds that address the legal errors alleged against the lower court (Art. 42 FSCA). The complainant must raise specific objections and may not limit himself to general criticism. In addition, he must demonstrate a legally protected interest in the setting aside CO amendment of the contested decision (Art. 81 para. 1 lit. b FSCA).

2. Lack of standing to appeal under Art. 81 para. 1 lit. b no. 5 FSCA:

The complainant initially based his standing on the impairment of his civil claims (Art. 81 para. 1 lit. b no. 5 FSCA). However, the Federal Supreme Court denied sufficient substantiation of the prerequisites for a claim under Art. 41 para. 1 CO, in particular the lack of proof of causality between the contested articles and the asserted damage. In addition, the costs of the criminal complaint were classified as public-law costs, which do not give rise to a civil claim. A claim for satisfaction was also not sufficiently substantiated.

3. Standing to appeal under Art. 81 para. 1 lit. b no. 6 FSCA (right to file a criminal complaint):

The complainant had standing to appeal insofar as he alleged a violation of his right to file a criminal complaint (Art. 81 para. 1 lit. b no. 6 FSCA). He argued that the lower court had wrongly assumed that no criminal complaints had been filed against the authors of the reader comments, thereby preventing their criminal prosecution. The Federal Supreme Court confirmed that this objection was admissible as it related to the exercise of the right to file a complaint as such.

4. Interpretation of the criminal complaint:

The Federal Supreme Court held that the intention to pursue criminal prosecution could be inferred from the circumstances and the overall context of the criminal complaint. In his complaint of 15 August 2023, the complainant had reproduced the individual defamatory comments verbatim and expressly asserted their criminal liability. In addition, he requested the disclosure of the identity of the comment authors, which demonstrated his intention to pursue criminal prosecution against these persons. The lower…