Refusal of authorization to prosecute firefighters, rescue service employees, police officers and a hospital director for violation of the secret or private sphere; appeal dismissed

Facts

Parties and subject matter of the proceedings: The appellant [A.] filed a criminal complaint on 28 August 2017 with the Zurich Cantonal Police against [B.] (member of Schutz & Rettung Zürich or rather the Horgen Fire Brigade) and against persons unknown for violation of the secret or private sphere through recording devices (Art. 179quater SCC). It was alleged that the persons involved had, during an operation in a treatment room of the See-Spital in Horgen on 11 June 2017, made photographs and/or videos of the appellant with mobile phones without consent.

Preliminary proceedings: The Limmattal/Albis Public Prosecutor's Office discontinued the proceedings against [B.] on 30 September 2019. The Zurich Cantonal Court of Appeal upheld the complaint on 10 July 2020 and held that the Public Prosecutor's Office must also decide on further members of the Horgen Fire Brigade, of Schutz & Rettung Zürich and of the See-Spital. By submission of 18 August 2020 the appellant extended the criminal complaint against [E.] , [F.] , [G.] , [H.] and [I.] , raising new allegations against [H.] and [I.] . After supplementary investigations, the Public Prosecutor's Office transferred the file to the Court of Appeal on 29 March 2021.

Decision of the lower court: By decision of 20 October 2021, the Zurich Cantonal Court of Appeal (III. Criminal Chamber, TB210075-O/U/HEI) granted authorization to prosecute [B.] , [C.] and [D.] for violation of the secret or private sphere through recording devices. Authorization was refused for [E.] , [F.] , [G.] , [H.] , [I.] and [J.] .

Requests before the Federal Supreme Court: The appellant requested that authorization be granted against [B.] , [C.] and [D.] also for possible further offences; that authorization be granted against [E.] , [F.] , [G.] and [J.] , or that the matter be remitted for fresh examination; the same against [H.] and [I.] ; and further, the hearing of witnesses from the See-Spital, legal aid, conduct of the proceedings excluding the public, and non-publication of the judgment. The lower court, the Senior Public Prosecutor's Office, the Public Prosecutor's Office and individual respondents waived submission of observations.

Main issue: Whether the cantonal refusal of authorization to prosecute employees or officials (Art. 7 para. 2 lit. b CrimPC in conjunction with § 148 GOG/ZH) was contrary to federal law, in particular with regard to coercion, fraud, document offences, abuse of office, breach of official secrecy and threats.

Considerations

Admissibility and standing: The Federal Supreme Court affirmed its jurisdiction. The final cantonal decision refusing authorization concludes the proceedings (Art. 90 FSCA) and does not fall under the exclusion ground of Art. 83 lit. e FSCA, as no supreme executive and judicial authorities are concerned. The appellant has standing to appeal (Art. 89 para. 1 FSCA) insofar as allegations of violation of the secret or private sphere, threats, coercion and fraud are concerned; with regard to official offences, standing exists because he could be regarded as an injured person within the meaning of Art. 115 para. 1 CrimPC.

Subject matter of the dispute and requirements of reasoning: The subject matter of the dispute is limited to what was the object of the first-instance proceedings and may only be narrowed, not expanded, in the appeal proceedings (Art. 99 para. 2 and Art. 107 para. 1 FSCA). The requests concerning unknown perpetrators, bias, delay of justice and the hearing of witnesses were not entered into, as they were not the subject of the referral or of the authorization proceedings. The request for prosecution for further, unsubstantiated offences did not meet the reasoning requirements of Art. 42 paras. 1 and 2 FSCA and was therefore not entered into (BGE 134 II 244 E. 2). Otherwise, the appellant largely repeated his complaints from the lower court without sufficient engagement with the contested decision. The Federal Supreme Court examines only properly raised complaints and is not an appellate instance; complaints concerning the facts must be raised precisely (Art. 97 para. 1, Art. 105 para. 2 FSCA).

Standard of the authorization proceedings: The authorization requirement under Art. 7 para. 2 lit. b CrimPC in conjunction with § 148 GOG/ZH serves to protect members of authorities and officials from malicious prosecution. Only criminal-law considerations may be taken into account. A minimum of indications of criminally relevant conduct is required, which must appear minimally credible. Since the authorization decision precedes the decision on opening or discontinuing proceedings, a lower degree of probability of criminal conduct suffices than for the discontinuation of opened proceedings (BGE 147 I 494 E. 3.1; BGE 137 IV 269 E. 2.4).

Assessment of the individual respondents: For respondent 4 (staff officer of the Horgen Fire Brigade), there were no indications of coercion, fraud or breach of official secrecy; the assertion concerning a vehicle that could not be offset was not sufficiently substantiated, and the question of offsetting would have had to be clarified through administrative channels. For respondent 5 and respondent 6 (employees of Schutz & Rettung Zürich), there were no indications of false certification in office (Art. 317 no. 1 para. 2 SCC), since information provided carries no heightened credibility (BGE 131 IV 125 E. 4.1); the threat to call the police was, according to BGE 141 IV 437 E. 3.2.1, a legitimate means of preventing criminal…