Inadmissibility of the private prosecutor’s appeal due to lack of standing to influence civil claims

Facts

Parties and procedural history:

The appellant [A.B.] challenges the discontinuation of criminal proceedings by the Attorney General of the Canton of Aargau dated 18 August 2023. This discontinuation concerns the accusation of disobedience to official orders (Art. 292 SCC) against the respondent [B.B.] , who, as heir of the deceased [C.B.] , was obliged to provide the appellant with comprehensive information on lifetime gifts and the corresponding documents. The obligation to provide information arose from a decision of the Regional Court of Emmental-Oberaargau dated 31 January 2022, which set a deadline of 30 days and threatened a fine under Art. 292 SCC in conjunction with Art. 343 para. 1 lit. a CPC in case of non-compliance.

The Higher Court of the Canton of Aargau dismissed the appellant’s appeal against the discontinuation order in its decision dated 18 December 2023, to the extent it was admissible. The appellant then filed an appeal in criminal matters with the Federal Supreme Court on 24 February 2024, requesting the quashing of the cantonal decision and a remittal for new consideration. In the alternative, the appellant sought the quashing of the discontinuation order and an instruction to the prosecution authority to serve the decision of the Regional Court of Emmental-Oberaargau in a manner compliant with Art. 292 SCC and to take further investigative measures. The appellant also requested the granting of suspensive effect.

Legal context:

The appellant bases his appeal on the assertion that he is entitled to act as a private prosecutor, as he has been injured in his rights by the offence under Art. 292 SCC. He argues that the contested decision affects his civil claims, in particular a possible claim for damages CO satisfaction under Art. 41 et seq. CO, which he could assert in the criminal proceedings by way of adhesion. The respondents, represented by a lawyer, opposed the appeal.

Considerations

1. Examination of admissibility requirements and standing to appeal:

The Federal Supreme Court examines ex officio whether the appeal in criminal matters is admissible. According to Art. 81 para. 1 lit. b no. 5 FSCA, a private prosecutor is only entitled to appeal if the contested decision could affect the assessment of their civil claims. This requires the private prosecutor to demonstrate how the decision influences their civil claims. The requirements for substantiating standing are high: the appellant must specify the damage suffered and, where possible, quantify it. A mere assertion of being affected is insufficient.

The appellant claims to be the holder of the legal interest protected by Art. 292 SCC and to have constituted himself as a private prosecutor. He further asserts that the damage arises from the refusal to provide information since 2 February 2022 and could be asserted by way of adhesion in the criminal proceedings. However, these submissions do not meet the strict requirements of the Federal Supreme Court. There is no sufficient demonstration of how the discontinuation of the proceedings for disobedience to official orders (Art. 292 SCC) affects the appellant’s civil claims.

It is also doubtful whether the appellant can be considered as “directly harmed” within the meaning of Art. 115 para. 1 CrimPC. The Federal Supreme Court has clarified in previous decisions that not every person who has obtained an order under Art. 292 SCC automatically acquires the status of a private prosecutor. Rather, there must…