Facts
The complainant A. was convicted by the District Court of Solothurn-Lebern on 15 March 2021 of commercial fraud, attempted commercial fraud and multiple fraud. The judgment was confirmed on appeal by the Higher Court of the Canton of Solothurn on 18 October 2023, with the sentence increased to a conditional custodial sentence of 24 months and a conditional fine of 70 daily penalty units. In addition, the claim for damages in favour of B. AG was confirmed.
The Disability Insurance Office of Solothurn (IV Office) had appealed against the partial discontinuation order of the Solothurn Public Prosecutor’s Office dated 27 July 2016, on the grounds that it considered itself to have been harmed by the complainant’s fraudulent acts. The appeal chamber of the Higher Court set aside the partial discontinuation order on 14 November 2016 and referred the case back to the Public Prosecutor’s Office for continuation of the proceedings. The Federal Supreme Court did not enter into a complaint against this decision (judgment of 18 August 2017). On 10 July 2020, the Public Prosecutor’s Office filed an indictment against the complainant, leading to the first-instance judgment on 15 March 2021 and the second-instance judgment on 18 October 2023.
The complainant argued in his appeal to the Federal Supreme Court that the IV Office had no party status in the criminal proceedings and was therefore not entitled to appeal against the partial discontinuation order. He also requested that the legal force of the partial discontinuation order be established and that he be acquitted of guilt and punishment.
Considerations
1. Party status of the IV Office and right to appeal The Federal Supreme Court first examined whether the IV Office had the necessary party status to appeal against the partial discontinuation order. According to Art. 382 para. 1 CrimPC, any party with a legally protected interest in the annulment or amendment of a decision may lodge an appeal. However, the IV Office is not a harmed person within the meaning of Art. 115 para. 1 CrimPC, as it was not directly and personally affected in its own rights by the fraudulent acts. The IV Office acts in a sovereign capacity when granting or refusing benefits prescribed by law within a relationship of subordination. The funds at its disposal are not directly attributable to it, and the fraudulent acts did not target legal interests that are available to it for the performance of its duties, but rather those for whose administration and protection it is responsible. Therefore, the IV Office cannot be constituted as a private prosecutor within the meaning of Art. 118 para. 1 CrimPC.
2. No party rights under Art. 104 para. 2 or Art. 105 para. 2 CrimPC The IV Office cannot derive its party status from either Art. 104 para. 2 CrimPC or Art. 105 para. 2 CrimPC. While Art. 104 para. 2 CrimPC allows for the granting of party rights to authorities safeguarding public interests, this requires a clear statutory basis. The Canton of Solothurn has not made use of this possibility. Furthermore, Art. 79 para. 3 GSSLA grants the IV Office party rights only in criminal proceedings concerning violations of Art. 148a SCC and Art. 87 OASIA, which does not apply in the present case. Art. 105 para. 2 CrimPC grants party rights only in cases of direct, immediate and personal involvement, which is not the case here.
3. Legal force of the partial discontinuation order As the IV Office was not entitled to appeal against the partial discontinuation order of 27 July 2016,…