In a judgment intended for publication (6B_1266/2020 from April 25, 2022)in which our firm acted on behalf of the defendant, the Swiss Federal Supreme Court reiterated its established case law on the standing of the injured party’s next of kin as plaintiffs in cases of transfer of rights by inheritance (art. 121 al. 1 CPP).
A/ THE FACTS
By judgment of the court of first instance, D. was discharged from the offences of usury by trade, alternatively theft by trade and swindling by trade. A.’s civil claims were rejected.
A. files a statement of appeal on December 24, 2019, and then dies.
A.’s nieces and nephew therefore lodged a complaint, in their capacity as relatives of the deceased injured party, by transfer of rights (art. 121 al. 1 CPP).
While the defendant argued that the appeal was inadmissible due to the death of the plaintiff and the absence of next of kin within the meaning of art. 121 al. 1 CPP, the cantonal authority accepted the appeal. However, it did not examine the question of the validity of the transfer of rights to the injured party’s next of kin, but confirmed D.’s acquittal on the basis of the evidence in the file.
The heirs are appealing to the Federal Court.
The problem with this ruling is as follows: art. 121 para. 1 CPP states that the rights of the injured party pass to his next of kin within the meaning of art. 110 al. 1 CP, in order of succession. But what happens when the heirs of the injured party are not close relatives within the meaning of art. 110 para. 1 StGB?
B/ THE LAW
In order to lodge an appeal with the Federal Supreme Court, the plaintiff must demonstrate that the contested decision may have an effect on the adjudication of civil claims (art. 81 al. 1 let. a and b ch. 5 LTF). But you still need to be a plaintiff.
First of all, the Federal Court points out that in order to be a plaintiff within the meaning of art. 118 para. 1 of the Swiss Code of Criminal Procedure, it is necessary to be aggrieved within the meaning of art. 115 CPP. The injured party is the person whose rights have been directly affected by the infringement (ATF 141 IV 1).
The heirs of an injured natural or legal person are only indirectly affected in their rights and cannot, in principle, be recognized as plaintiffs. Art. 121 para. 1 CPP is an exception to this principle and allows relatives of the injured party as defined in art. 110 CP to be granted the rights conferred by plaintiff status (ATF 146 IV 76 consid. 2.2.1; ATF 140 IV 162 consid. 4.4).
The notion of “close relative” is exhaustively regulated in art. 110 CP and must be interpreted restrictively according to the Federal Court (TF 6B_549/2013 of February 24, 2012, recital 3.2.1) (recital 3.1 of the judgment under review). Relatives include spouses, registered partners, direct relatives, brothers and sisters on the same line, consanguineous or uterine, as well as parents, siblings and adopted children.
In this way, not all the heirs of the deceased are included in the notion of art’s next of kin. 110 CP. To sum up, the Federal Court found that “. transfer of procedural rights under art. 121 para. 1 PCC and the material ownership of rights in the estate do not necessarily overlap. ” (TF 6B_27/2014 of April 10, 2014) (recital 3.1 of the judgment under review).
The Federal Court points out that the clear, detailed and exhaustive regulation of art. 121 al. 1 CPP excludes the heirs of the lower-ranking injured party from being plaintiffs, and deduced that there was no gap (per se) in the law (ATF 140 IV 162 rec. 4.9.6).
In this case, A.’s nieces and nephews are the legal heirs under art. 459 CC and automatically acquired the universality of A.’s estate (art. 560 para. 1 CC). However, they do not have the status of close relations within the meaning of art. 121 para. 1 PC cum art. 110 PC.
Strictly speaking, as A.’s nieces and nephews are not close relatives, despite their status as heirs, they cannot be recognized as plaintiffs by transfer of rights under art. 121 al. 1 CPP (plaintiff by succession).
The literature has been critical of this approach.
In fact, the heirs must act jointly, as part of a necessary consortium, to assert their civil claims in the criminal proceedings by way of an adhesive civil action (art. 122 al. 1 CPP) (ATF 142 IV 82). According to the text of the law, it would be sufficient for one of the heirs not to have the status of a close relative for the adhesive civil action to be excluded, and for the heirs to be obliged to take civil action. Some legal writers therefore propose that, when the heirs are close relatives within the meaning of art. 110 CP and of heirs who do not meet this requirement, to make an exception to the requirement of close relationship in order to allow the heirs to form a necessary consortium for the purpose of exercising a common claim.
But the Federal Court finds that the provision of art. 121 para. 1 of the Swiss Code of Criminal Procedure is exhaustive and there are no loopholes as such.. The above-mentioned doctrine does not invoke any circumstances that have evolved or that the Federal Court has wrongly ignored since ATF 140 IV 162 (recital 3.7), which would call for a reversal of case law. However, The Federal Court does not seem to have definitively rejected the doctrinal proposal to admit an adhesive civil action when one of the heirs is a close relative but the other is not, since in the case in point, none of the heirs was a close relative within the meaning of art. 110 CP.
In an obiter dictum, the Federal Court again asks the question the question of whether succession by reason of death could be considered a case of legal subrogation within the meaning of art. 121 al. 2 CPP. In this configuration, the heirs would only be able to avail themselves of procedural rights relating to civil claims, which would allow for an adhesive civil action in the event that certain heirs do not have the status of close relatives. On the other hand, art. 121 al. 2 CPP refers exclusively to civil claims, to the exclusion of participation as plaintiff in criminal proceedings. Our High Court does not settle this question, noting that the appellants are attacking D.’s acquittal, which they are not authorized to do under art. 121 al. 2 CPP.
In the end, the deceased plaintiff’s appeal, taken up by her “unprotected” heirs, was well and truly inadmissible. Similarly, in the absence of standing to appeal within the meaning of art. 81 al. 1 ch. 5 and 6 LTF, the federal appeal is also inadmissible.
That’s the end of the matter.
But a semicolon for the – fascinating – questions still left open by the Federal Court regarding the succession of plaintiffs.
To be continued…
