In a 5-judge decision handed down by the Federal Supreme Court on February 21, 2024 (7B_853/2023), our High Court reiterated the obligation of the police to investigate and pass on to the competent authorities any offences they become aware of. The police cannot invoke the principle of expediency to refrain from prosecuting. By failing to report a criminal offence, a police officer is guilty of obstructing criminal proceedings.
IN FACT
Riding his motorcycle, an individual crossed a lane reserved exclusively for buses, cabs and cycles, then a lane closed to motor vehicles and motorcycles, and finally a pedestrian zone. He was spotted by a police officer in an unmarked car, who followed him and arrested him.
During the stop, the police officer reminds him of his misdeeds – which he acknowledges – which are punishable by fines. However, the police officer explained to the motorcyclist that he would not be punishing him this time.
As he left, the motorcyclist mumbled: “I know people in the department”. The policeman then returned to the scene, checked his papers, scanned his driver’s license and license plate and left.
On the same day, the motorcyclist lodged a criminal complaint for abuse of authority, alleging that the policeman had told him in an unpleasant and aggressive tone: “you’re lucky” and “if I ever hear of you, you’re in for a very rough ride”.
The Public Prosecutor’s Office dismissed the proceedings for the offence of abuse of authority against the police officer, failing to establish the constituent elements of this offence. The Public Prosecutor’s Office had also opened criminal proceedings against the police officer for obstructing criminal proceedings by failing to punish the motorcyclist. However, the public prosecutor’s office has decided not to prosecute the police officer for this offence, pursuant to art. 52 of the Swiss Criminal Code, but orders him to pay the costs of the proceedings in accordance with art. 426 al. 2 CPP, if the police officer has committed an unlawful act.
The police officer thus appealed all the way to the Federal Court, in an attempt to have the offence of obstructing criminal proceedings recognized as not having been committed. The Federal Court dismissed the appeal.
IN LAW
First of all, the Federal Supreme Court reviewed the constituent elements of the offence ofobstruction of criminal proceedings enshrined in art. 305 CP. Under art. 305 para. 1 StGB, anyone who evades prosecution or the execution of a sentence or measure under arts. 59-61, 63 and 64 StGB will be punished by a custodial sentence of up to three years or a pecuniary penalty. The legal asset protected by this provision is the proper functioning of the justice system, i.e. a collective interest (ATF 141 IV 459 rec. 4.2).
Evasion presupposes that the perpetrator has prevented an action by the authorities in the course of criminal proceedings for at least a certain period of time (ATF 141 IV 459 recital 4.2; ATF 129 IV 138 recital 2.1).
Our High Court also confirms that embezzlement can be committed by abstention, provided that the perpetrator has a legal obligation to act due to a position as guarantor. More specifically, the person in question must be subject to a duty of protection and supervision (ATF 141 IV 459 rec. 4.2; ATF 123 IV 70 rec. 2). The position of guarantor is realized when an individual has a particular obligation to collaborate in the administration of criminal justice, notably by virtue of his or her function, such as a game warden or police officer, with reference to the obligation to denounce contained in art. 302 al. 1 CPP.
The Federal Court also reminds us that the order fine procedure remains a criminal procedure and that the general principles of criminal law apply, despite the absence of any real ordinary procedure conducted by the criminal prosecution authorities, and without taking into account the background and personal situation of the perpetrator.
In this case, the police officer admitted that he had decided not to fine the motorcyclist. He maintains, however, that the absence of real criminal proceedings in the context of an order fine, and its anonymous nature, do not make it possible to establish the offence of obstruction of criminal proceedings. The Federal Court disagrees. Relying on old case law (ATF 99 IV 266), the Mon Repos judges maintain that the offence of hindering action has been committed without any criminal proceedings having been instituted or being instituted in the future. In the same way, it is not necessary for the lawsuit to be directed against the favored person by name.
In a second grievance, the police officer alleged that the waiver to fine the motorcyclist fell within his discretionary power and that he therefore had a justifiable reason, within the meaning of art. 14 CP, to be released from the offence of obstructing criminal proceedings. The Federal Court once again disagreed, noting thata police officer is subject to a duty to act under the law and is obliged, at the very least, to report any offences he or she discovers, under art. 7, 12 let. a and 302 CPP. Since he is under an obligation to act, a police officer has no “margin of discretion” and cannot invoke “a principle of proportionality” to allow him to exempt a person from criminal prosecution.
Lastly, the Federal Court confirms a long-standing case law handed down under the former cantonal codes of criminal procedure (ATF 109 IV 46, para. 3), which contained a broader notion of expediency, according to which a police officer who refrained from forwarding a complaint to the competent authority, even though the law obliged him to do so, could not rely on the principle of expediency and was guilty of obstructing criminal proceedings. The Mon Repos judges anchored this jurisprudence in the new Code of Criminal Procedure and upheld the principle that “. the police are obliged, except in the case of minor traffic offences or manifestly unfounded reports, to investigate and pass on to the competent authority, even if the facts appear dubious and they are overburdened. “.
The constituent elements of art. 305 of the Swiss Criminal Code had therefore been fulfilled, so that the police officer could be ordered to pay the costs of the proceedings under Art. 426 al. 2 CPP.
This ruling is interesting for several reasons:
- While police officers cannot invoke the principle ofdiscretionary prosecution, the same applies to the public prosecutor’s office. In fact, the CPP does not allow for any real classification on the basis of opportunity, as long as the scope of the authority’s discretionary power ultimately depends essentially on the wording and content of the legal clauses”. “(Roth/Villard, Commentaire Romand du Code de procédure pénale, Basel 2019, 2ème edition, N 5 ad art. 8 CPP). Only if the legal requirements of art. 8 CPP are fulfilled that the public prosecutor has the power to close proceedings against an individual. This “waiver of prosecution” does not prevent the defendant from being ordered to pay the costs of the proceedings, under art. 426 al. 2 CPP, without violating the presumption of innocence. Indeed, the absence of an interest in punishment (art. 52 CP) presupposes that the “culpability of the perpetrator and the consequences of his act are of little importance”, i.e. that the constituent elements of the offence are present. It should also be remembered that the other cases of waiver of prosecution mentioned in art. 8 al. 1 CPP, i.e. reparation (art. 53 CPP) and the harm suffered by the perpetrator as a result of his act (art. 54 CPP), lead not only to the closure of the proceedings, but also to an entry in the criminal record (art. 18 al. 1 let. c LCJ). Only an exemption from punishment based on art. 52 of the Swiss Criminal Code prevents the accused from having his name entered in the criminal record.
- The Federal Supreme Court approves the charging of costs to an accused whose criminal proceedings have been terminated, on the grounds of lack of interest in punishment (art. 52 CP). In another ruling, our High Court also upheld the decision to charge costs to the defendant, whose criminal proceedings had been terminated under art. 53 CP (ATF 144 IV 202; decision 6B_132/2022 of March 3, 2023). According to the Federal Court, this decision does not infringe the presumption of innocence. If this reasoning can be approved in relation to art. 53 StGB, since the termination of criminal proceedings is justified by the need to repair the damage caused by the accused, without the public prosecutor having to rule on the culpability of the perpetrator, the question could be raised for art. 52 CP. As we have seen, the cantonal court found that the constituent elements of art. 305 CPs were issued to cover the police officer’s costs. She has therefore, at least implicitly, pronounced on the officer’s guilt. According to well-established case law, an acquitted defendant’s order to pay all or part of the costs must respect the presumption of innocence, enshrined in art. 32 al. 1 Cst. and 6 par. 2 ECHR. This prohibits a decision that is unfavorable to the released defendant from implying that he or she is nonetheless guilty of the offenses with which he or she is charged. In our opinion, charging the costs to the defendant in the event of application of art. 52 CP is not open to criticism. This provision provides for an exemption from punishment when the perpetrator’s guilt is of little significance, so there is an admission of guilt but the defendant is exempt from punishment. An order to pay costs does not violate the presumption of innocence. That said, a clarification from the Federal Court would have been welcome.
- The duty to denounce falls primarily on the police, who are in the front line when it comes to uncovering offences, under art. 302 CPP. That said, art. 302 para. 2 of the Swiss Code of Criminal Procedure stipulates that the Confederation and the cantons shall regulate the duty to report incumbent on members of other authorities. The risk of prosecution for obstructing criminal proceedings could thus be extended to other professions subject to a duty to denounce, provided that the person in question is subject to “a duty of protection and supervision”. (ATF 123 IV 70 consid. 70; ATF 120 IV 98 consid. 2c). The Swiss Federal Court had recognized that a gamekeeper, charged with ensuring compliance with hunting regulations, could act as guarantor, giving him powers similar to those of a police officer (ATF 74 IV 164), but not to a taxidermist (ATF 123 IV 70). In another ruling, the Juges de Mon Repos recalled that the general obligation for all civil servants to report to the criminal authorities any offences of which they become aware in the course of their duties does not create a situation of guarantor in all cases (ATF 118 IV 309). The question arises as to whether the offence of obstructing criminal proceedings has been committed, when a magistrate, such as a civil, criminal or administrative judge, fails to report an offence of which he or she has knowledge. Following the example of legal doctrine, it would seem inexplicable to us that a civil judge with knowledge of facts relating to child abuse should not be obliged to denounce these facts to the criminal prosecution authority (Parein, Commentaire Romand du Code de procédure pénale, 2ème edition, Basel 2019, N 6 ad art. 302 CPP). In any case, the Federal Court specifies that the position of guarantor is given to ” a person who has a particular obligation to collaborate in the administration of criminal justice, in particular by reason of his function “. At federal level, this includes Antidoping Switzerland, which is obliged to report any positive doping test to the competent criminal authorities (art. 23 para. 2 LESp). In the canton of Vaud, the Direction générale de l’enfance et de la jeunesse (DGEJ) is under an obligation to report all facts likely to constitute an offence prosecuted ex officio in the field of child protection (art. 34 al. 3 LVPAE). According to jurisprudence, failure to report would constitute obstruction of criminal proceedings.
- Even if the Federal Court’s reasoning is correct, as it avoids arbitrary application of the principle of expediency, we question the need to reflect on the introduction of real expediency classification, given the constant overloading of the criminal justice system. In our practice, we chronically experience a lengthening of the duration of criminal proceedings, which can be unpleasant for both the accused and the plaintiff. The introduction of an opportunistic filing system, as used in some cantonal systems, within a strict, defined framework, could relieve the criminal prosecution authorities of their workload.
But in the meantime, beware of the authorities, because from now on, he who thought he wouldn’t be caught will be caught!
