Inadmissibility of the appeal against an interlocutory decision on the territorial jurisdiction of Swiss authorities in respect of defamation and calumny by publication of articles

Facts

On 18 January 2017, [B.] and [C.] filed a criminal complaint against [A.] , an independent journalist residing in France, and against persons unknown for defamation and calumny. The complaints targeted several articles allegedly damaging to honour, published on 25 October 2016 in the newspaper [D.] and on 2, 4 and 6 November 2016 on a blog under a pseudonym.

The Central Public Prosecutor's Office of the canton of Vaud, Special Affairs Division, opened a criminal investigation against [A.] for calumny and defamation.

By interlocutory decision of 21 January 2019, the Prosecutor in charge held that the jurisdiction of Swiss authorities was established and that the case remained with the Central Public Prosecutor's Office.

On appeal by [A.] , the Criminal Appeals Chamber of the Cantonal Court of the canton of Vaud confirmed this decision by judgment of 7 February 2019. It held that the article of 25 October 2016, of which the appellant was the author, imported into the newspaper [D.] (based in Lausanne, with a Swiss or at least French-speaking Swiss target audience), was attributable to him, so that a result in Switzerland within the meaning of art. 8 para. 1 SCC existed.

[A.] asks the Federal Supreme Court to reform this judgment, to admit his appeal, to reject the jurisdiction of the Swiss and Vaud authorities, to close the investigation and to order the transfer of the case file. No exchange of written submissions was ordered.

Principal question: the admissibility of the appeal in criminal matters against an interlocutory decision on the territorial jurisdiction of Swiss authorities (art. 92 and 93 FSCA).

Considerations

The Federal Supreme Court examines of its own motion and freely the admissibility. The contested decision concerns the criminal jurisdiction of Swiss authorities and is of an interlocutory nature, since it does not terminate the proceedings; admissibility must therefore be examined in light of art. 92 and 93 FSCA.

Under art. 92 FSCA, interlocutory decisions concerning jurisdiction or recusal may be challenged separately, provided they decide the question definitively. In criminal matters, the decision of the investigating authority on territorial jurisdiction within the meaning of art. 3 ff. SCC is based on established or probable facts and binds neither the trial authority on the facts nor on the law. Lack of jurisdiction may be raised of its own motion in case of referral (art. 329 para. 1 let. b CrimPC) and raised at the opening of the hearings (art. 339 para. 2 let. b CrimPC). The question is therefore not decided definitively, so the incidental appeal under art. 92 FSCA is not open (ATF 133 IV 288 consid. 2.2).

Under art. 93 para. 1 let. a FSCA, an irreparable harm of a legal nature must be demonstrated. Being subject to criminal proceedings does not in itself constitute such harm (ATF 133 IV 288 consid. 3.1). The appellant would suffer no legal prejudice if jurisdiction were subsequently denied; there is therefore no irreparable harm.

Under art. 93 para. 1 let. b FSCA, immediate appeal presupposes…