In a ruling 6B_769/2019 dated October 25, 2019, the Federal Supreme Court reminds us how narrow the avenue of appeal to the Federal Supreme Court in criminal matters is for the plaintiff.

Paradoxically, if the groundwork for an appeal to the Federal Supreme Court has not been carefully laid in the early stages of the procedure, the chances of success are slim to none.

Practitioners know that, according to art. 81 al. 1 let. a and b ch. 5 LTF, the plaintiff who took part in the final cantonal proceedings is entitled to appeal to the Federal Court, if the contested decision may have an effect on the adjudication of his civil claims. These civil claims are mainly claims for damages and compensation for pain and suffering within the meaning of art. 41 ff of the Swiss Code of Obligations. In the event of acquittal of the accused, this presupposes that the plaintiff asserts civil claims arising from the offence in the criminal proceedings, insofar as this could reasonably be required of him, it being remembered that civil claims must be raised at the latest during the pleadings before the court of first instance.

However, it may happen that the plaintiff is not in a position to raise his civil claims before the Court of First Instance, in the case of damage that continues to evolve, for example. She must then indicate what kind of civil claims she intends to assert and request that they be awarded to her in principle. On the other hand, the plaintiff cannot simply ask for his civil claims to be reserved, or simply point out that he could assert them at a later date in other proceedings. This is because the Federal Court has already made it clear that, by proceeding in this way, the plaintiff is not making a civil claim on the merits(ATF 127 IV 185, rec. 1b p. 188). The appellant therefore risks having his appeal dismissed as inadmissible.

In addition, art. 42 al. 1 LTF, requires the appellant to allege the facts which he considers to justify his right to appeal.

In this case, the plaintiff company had lodged a complaint against the defendant, alleging that he had forged receipts on the plaintiff’s letterhead. The Court of First Instance had acquitted the defendant of the charge of forgery, and the appellant’s appeal against this acquittal was rejected by the Court of Appeal of the Vaud Cantonal Court.

The appellant lodged an appeal with the Swiss Federal Court against the ruling of the Vaud Court of Appeal. Problem: she is “only” a plaintiff and, in this capacity, is only entitled to appeal insofar as the contested decision may have an effect on her civil claims and under the restrictive conditions set out above, which unfortunately had not been sufficiently anticipated by the plaintiff.

In fact, the Federal Court held that: “. In the case in point, the criminal proceedings were taken all the way to the judgment stage, which should have enabled the appellant, as plaintiff, to articulate her civil claims. However, she limited herself to requesting the reservation of her rights. To this extent, in accordance with the aforementioned case law, the appellant did not make any civil claim on the merits. “.

Admittedly, at the stage of her appeal to the Federal Court, the appellant had clearly seen the problem and claimed that she had an interest in obtaining the respondent’s conviction, as this would enable her to win her case in the tax proceedings concerning her, which are currently suspended. She explained that she had been unable to file a civil action because her loss was unknown and she had no title to the tax refund.

Why not, but not enough for the Federal Court: ” However, the link between the criminal proceedings for forgery of documents and the tax recovery proceedings has been known since the beginning of the criminal proceedings. In fact, in support of her criminal complaint of October 12, 2016, the appellant had already explained that the ACI had sent her a request for clarification concerning a debtor “D.________ Sàrl” in respect of receipts amounting to 207,915 fr. of which the ACI had taken cognizance“.

And the Federal Supreme Court reminds us of the procedure to follow in such situations.

Firstly, it explains that in matters of forgery of documents of title, ” Forgery of documents of title can also harm individual interests, particularly when it is specifically intended to harm a private individual ( ATF 140 IV 155 Consider. 3.3.3 p. 159; 119 Ia 342 Consider. 2b p. 346 s. and references cited). This is the case when the forgery is one of the elements of an offence against property, in which case the person whose property is threatened or affected is the injured party ( ATF 119 Ia 342 consid. 2b p. 346 f.; judgments 6B_655/2019 of July 12, 2019 consid. 4.3.3; 6B_1274/2018 of January 22, 2019 consid. 2.3.1)“.

He then reminds us that in Swiss economic criminal law, the damage may take the form of a simple endangerment of assets, which is achieved when the culpable conduct of the accused leads the injured party to set aside provisions in his accountsand suggests what the plaintiff should have done in this case. Thus :

Insofar as the damage may, in particular, take the form of endangering the heritage in such a way as to diminish its value from an economic point of view ( ATF 129 IV 124 Consider. 3.1 p. 125; 123 IV 17 Consider. 3d p. 22; 122 IV 279 Consider. 2a p. 281), it could not be ruled out that the respondent’s conviction for forgery of documents by the authority of first instance would already enable the appellant to assert claims for compensation against him under art. 41 CO (cf. rulings 6B_1151/2014 of December 16, 2015 para. 1.2; 6B_96/2014 of June 30, 2014 para. 1.4). The appellant was therefore aware of the principle of the tax risk involved. If the company considered it probable, it had to take this into account in its balance sheet in the form of a provision. (cf. ATF 123 IV 17 Consider. 3d p. 22; Chambre fiduciaire, Manuel suisse d’audit, Tome “tenue de la comptabilité et présentation des comptes”, 2014, p. 213-218). In any case, we fail to see in what way the impossibility of putting an exact figure on her claims, or the absence of a deed evidencing the tax reassessment, prevented the appellant from indicating what kind of civil claims she intended to raise and requesting that they be awarded to her at least in principle”.

And the Federal Court concludes:

“It follows that the appellant has not demonstrated to the satisfaction of the law that the conditions for granting her standing to appeal on the merits have been met. In this context, the question of whether the offences allegedly committed by the respondent were of such a nature as to cause the appellant direct and individual damage may be left open.“.

It should be remembered that, in the field of economic crime, the plaintiff’s main motive in the proceedings is to obtain compensation for the damage he has suffered. With this in mind, we can see from this ruling that in economic criminal proceedings, it is vital for the plaintiff to allege damage, if only purely for accounting purposes or by endangering assets. Otherwise, all the efforts made by the plaintiff to obtain justice or compensation may prove futile at the end of the procedure… pity…

Leave a Reply