Facts
The appellant (private prosecutor) filed a private criminal complaint against [X.] on 31 May 2017 on suspicion of insult (Art. 174 SCC) or defamation (Art. 173 SCC). By penal order of 4 October 2017, [X.] was sentenced for defamation to a monetary penalty and a Busse. Upon objection, the Public Prosecutor's Office of the Canton of Nidwalden discontinued the criminal proceedings on 23 March 2018.
The private prosecutor's appeal against this decision was dismissed by the Obergericht of the Canton of Nidwalden, Appeals Division in Criminal Matters, on 15 January 2019, insofar as it was admissible (BAS 18 4).
By appeal in criminal matters of 5 July 2019, the private prosecutor requested that the judgment be set aside and that [X.] be found guilty of defamation or, alternatively, slander; in the alternative, the matter be remitted to the lower court for a new decision.
The subject of the contested judgment was solely the WhatsApp message of 11 March 2017. Before the Federal Supreme Court, the private prosecutor additionally wished the WhatsApp message of 13 March 2017 to be taken into account, which he had not, however, submitted in the proceedings before the Obergericht.
The private prosecutor did not set out which civil claims (damages, redress for moral harm) he wishes to derive from the insult. The designations 'Lügenbaron' and 'Mistfirma [B.] ' were cited as the subject of the complaint; a personal connection between the company designation and the private prosecutor was not apparent.
Considerations
A private prosecutor is recognised as having a legally protected interest in an appeal if the contested decision may affect the determination of his civil claims (Art. 81 para. 1 lit. b no. 5 FSCA). In cases of non-entry into or discontinuation of criminal proceedings, the requirement that civil claims be asserted by way of adhesion is generally not imposed. However, before the Federal Supreme Court the private prosecutor must explain to what extent the contested decision may affect which civil claims, insofar as this is not readily apparent from the file. The Federal Supreme Court applies strict requirements to the reasoning.
The appeal brief does not meet these requirements. It contains nothing on standing and civil claims. The mere possibility that the reported offence could lead to such claims is not sufficient. The private prosecutor does not identify any claim and does not explain which claims for damages arising from infringement of personality rights he wishes to derive. Claims for redress for moral harm in cases of insult offences exist…