Article 86 para. 1 of the Swiss Federal Railways Act (EBG) punishes with a fine anyone who intentionally enters or travels in a railway operating area without authorization, or disrupts it in any other way.
This is what a defendant was accused of doing when she crossed the tracks in July 2016 at Brig station. The Swiss Federal Railways (SBB) filed a criminal complaint. Following an objection by the defendant, the Court of First Instance acquitted her. For the first judges, on the day of the incident, the area in question in Brig station was not a railway operating area closed in all cases, but a level crossing in accordance with article 37 of the Railway Ordinance.
The Public Prosecutor’s Office did not appeal against this acquittal, but SBB did. On appeal by SBB, the Court of Appeal finally convicted the defendant of contravening art. 86 para. 1 LCdF.
However, the defendant appealed to the Federal Court against her conviction on appeal. His main argument is basic: art. 86 LCdF is not intended to protect SBB. They were therefore not injured by his behavior, could not claim to be injured parties in the proceedings, and therefore had no right to appeal against the acquittal in the first instance.
The Federal Supreme Court agreed with this argument and accepted the appeal in ruling 6B_1326/2018 of October 16, 2019.
The Federal Court begins by pointing out that any party with a legally protected interest in the annulment or modification of a decision may lodge an appeal.
He goes on to explain that this is particularly the case for the plaintiff, namely the injured party who declares, in accordance with Art. 118 of the Code of Criminal Procedure, participate in criminal proceedings as a plaintiff in criminal or civil proceedings.
The Federal Court goes on to specify that an injured party is a person whose rights have been directly violated by the offence. Thus, whoever is the holder of the legal interest protected or at least co-protected by the infringed penal provision is directly injured and thus affected in his own rights.
The Federal Court then tackled the question of penal norms that do not primarily protect individual rights and states that only those persons whose rights are infringed by the facts described therein are considered to be injured in practice, provided that this infringement is a direct consequence of the act in question. In the case of criminal offences affecting collective interests, it is generally sufficient for the injured party to acquire the status of an injured party if the individual legal assets he invokes are protected as a secondary objective by the criminal offence. On the other hand, if private interests are also, but only indirectly, harmed by offences that (only) affect public interests, the person concerned is not an injured party within the meaning of art. 115 al. 1 CPP.
Having set out these principles, the Court then analyses the disputed provision, namely art. 86 para. 1 LCdF to retain that it is anabstract endangerment offence that protects only collective interests.
So, in short,art. 86 para. 1 LCdF protects the safety of railway operations in the field of railway operations, and thus the public interest. This does not detract from the fact that this provision also serves the interests of the railways, but only indirectly for the Federal Court. As a result, SBB is not recognized as an injured party within the meaning of art. 115 al. 1 CPP. As a result, they only have the status of whistleblowers, who are neither injured nor complainants, and have no other procedural rights.
And the federal court concluded: unless the authorities authorized by a special law are competent – which was not the case here – the public prosecutor is solely responsible for the execution of the state’s criminal prosecution. In exceptional cases, a private individual may seek to obtain the criminal conviction of an accused person by means of a membership application, but this is only legally possible if the private individual is an injured party in accordance with art. 115 para. 1 of the Code of Criminal Procedure, as well as in criminal appeals under art. 81 al. 1 letter b number 5 LTF.
However, this was not the case for CFF and, in the absence of an appeal by the Public Prosecutor’s Office against the acquittal in the first instance, they had no possibility of demanding the conviction of the defendant by way of appeal, so that the acquittal in the first instance had full effect:
” Nach den vorangehenden Erwägungen ist die Legitimation der SBB AG zur Ergreifung eines Rechtsmittels in der Sache gegen das erstinstanzliche Urteil im Sinne von Art. 382 Abs. 1 StPO zu verneinen. Folglich ist das vorinstanzliche Urteil aufzuheben. Das erstinstanzliche Urteil ist entgegen dem Antrag der Beschwerdeführerin nicht zu bestätigen. Es bleibt bestehen.”
Once again, we see the weight and impact of protected legal assets in criminal proceedings.
