In a decision 1B_472/2021 dated March 22, 2022, the Federal Supreme Court has ruled on the right of the public prosecutor to appeal against compensation awarded to a third party under Art. 434 CPP for costs incurred in complying with a request for the production of documents ordered by the public prosecutor.
A/ The facts
On July 1, 2020, Aargau police recovered a wallet found in a restaurant’s toilet waste garbage can. The owner of the item quickly came forward. He explained that an unknown person must have stolen his wallet on June 30, 2020, during a bus journey, and therefore presumably took advantage of the opportunity to seize its container, a cash sum of CHF 730.
On July 3, 2020, on the basis of these explanations, the Public Prosecutor’s Office ordered the production of the surveillance camera recordings of the bus taken by the owner of the wallet on the day and time in question.
The transport company complied with the request and submitted the requested recordings. At the same time, she requested compensation of CHF 250 for this issue of evidence. The public prosecutor’s office initially rejected this request. It then compensated the transport company to the tune of CHF 50 following the admission of the latter’s appeal to the higher authority. The transport company decided not to rest on its laurels, and once again appealed to the appeals authority, which awarded it full compensation of CHF 250 to be paid by the State.
The public prosecutor has decided to take the case to the Federal Court.
B/ The law
The central issue in this judgment is the standing of the Public Prosecutor’s Office before the Federal Supreme Court, within the meaning of art. 81 al. 1 let. b ch. 3 LTF. The public prosecutor’s office has standing to appeal in the implementation of the criminal action as such, or related questions of substantive or procedural law (ATF 134 IV 36 consid. 1.4.3). In most cases, the public accuser must be recognized as having a legal interest. However, the legally protected interest cannot be accepted as a general rule and must be demonstrated in each case by the public prosecutor, in accordance with the reasoning requirements of art. 42 al. 1 LTF (ATF 141 IV 289 consid. 1.3).
In the present case, the Federal Court considers that the Public Prosecutor’s right to appeal against a decision awarding compensation for damage suffered by a third party in the course of ongoing criminal proceedings is not manifest (recital 1.4). In this configuration, the public prosecutor is required to explain in what way it has a legally protected interest (judgment 6B_1314/2016 of October 10, 2018, para. 1.4.3).
In the context of the costs of criminal proceedings, our High Court recalls that it had already had occasion to admit the legitimacy of the Public Prosecutor’s Office to contest :
On the other hand, the Public Prosecutor’s Office was denied standing to appeal when it came to apportioning the costs of the appeal proceedings between the convicted defendant and the State. The apportionment key does not affect the tasks that the Public Prosecutor must defend and that are the basis for a right to appeal (6B_1314/2016 of October 10, 2018 consid. 1.4.).
In the case in question, the higher cantonal authority awarded compensation to the transport company on the basis of art. 434 CPP. These costs must be borne by the State in the context of causal liability and cannot be charged to either the defendant or the plaintiff, in the absence of a sufficient legal basis (recital 1.5). According to the Federal Supreme Court, this situation is comparable to a dispute over the allocation of procedural costs between the convicted defendant and the state. The Juges de Mon-Repos reasoned by analogy that a decision to compensate a third party for damage suffered as a result of a procedural act does not fall within the scope of the public prosecutor’s activity, and therefore not an interest that he must defend. The Federal Judges do, however, specify that a legally protected interest may be recognized where the contested decision is of prejudicial importance for the performance of the public prosecutor’s duties, and where important public interests are thus at stake.
The appeal is therefore declared inadmissible.
It should be noted that the Federal Court ordered the State to pay the transport company CHF 2,500 in legal fees.
All in all, a heavy setback for the public prosecutor’s office.
