In a decision not intended for publication (1B_694/2021 of August 8, 2022), the Federal Court considers the validity of a waiver of a complaint when the victim has not been informed by the police of her rights as a victim of the LAVI.

A/ The facts

A is an asylum seeker placed in the Federal Center for Asylum Seekers (CFA) of Perreux in Boudry, in the canton of Neuchâtel.

On February 13, 2021, at approximately 6:00 p.m., while it was cold, A. arrived at the CFA in an intoxicated state after an afternoon outing. Noting his condition, security agents placed him in a sobering-up container. They heard tension between A. and two other people already present. They then decided to take A. out and place him in another container that had not been previously heated, while he was shirtless and agitated.

Subsequently, A. became unwell, requiring the intervention of officers and then 45 minutes later, paramedics. He was taken to the hospital. A. was taken back to the CFA by the police on the night of February 14, 2021, at approximately 3:00 a.m.

He was formally heard as a person called to give information on the same day at 12:15 pm, in the presence of an interpreter.

At the beginning of the hearing, the police did not inform him of his rights as an LAVI victim and would have told him that he could be assisted by a lawyer of his choice, at his own expense.

A. has waived the need for legal counsel. During his hearing, he stated that he was tired and only slept for an hour.

When asked if he had anything against the security guards, A. said, ” To answer your question, I don’t want to file a complaint against the two guards. Regarding the other two occupants of the first container, A. added: ” I don’t want to file a complaint for the theft. I leave you with (sic) do your investigation. Again, I do not wish to file a complaint “.

At the end of his hearing, A. only signed a police form with the heading: “Waiver to file a complaint (art. 30 al. 5 CP)” completed as follows: “I expressly waive the right to file a complaint against: Unknown, Concerning : Theft, threats. I take note that the waiver is final and that I cannot file a new complaint”.

On March 30, 2021, through his attorney, A. filed a criminal complaint and denunciation against unknown persons with the Public Prosecutor’s Office for “unlawful treatment” and stated that he wanted to participate in the proceedings as a plaintiff in both the criminal and civil cases.

The Public Prosecutor’s Office rejected the plaintiff’s claim on the grounds that A. had definitively renounced filing a criminal complaint, a decision that was confirmed by the Cantonal Court.

B/ In law

In law, the Federal Court decides two questions: 1) the violation of the police’s duty to inform the victim at the February 14, 2021 hearing under s. 2 of the Criminal Code 305 CPP and 15 al. 5 LAVI and 2) the validity of the waiver to file a criminal complaint under Art. 120 CPP and 386 al. 3 CPP.

In the first grievance, our High Court recalls that art. 305 PPC provides that, at the first hearing, the police or the Public Prosecutor’s Office must inform the victim in detail of his or her rights and duties in the criminal proceedings (paragraph 1). At the same time, the police or the public prosecutor’s office shall provide the victim with information on the addresses and tasks of the counselling centers (para. 2 letter. a) and the possibility of applying for various victim assistance benefits (para. 2 letter. b). Compliance with this section must be recorded in the minutes (para. 5).

The Federal Victims’ Assistance Act (LAVI) provides in particular that the victim must be informed of his or her right to access the counselling centers of his or her choice (art. 15 al. 3 LAVI), of the free of charge of the services provided and the fact that it is not required to reimburse the costs of free legal counsel (art. 5, 12 al. 1, 13 al. 1 and 30 LAVI).

The Federal Court adds that the police and the Public Prosecutor’s Office must inform the victim of all the specific and protective rights that belong to him during the criminal proceedings, insofar as these rights are relevant in the concrete situation. Finally, the victim must also be informed of the possibility of acquiring the additional status of complainant, by expressly declaring his or her desire to participate in the criminal proceedings (commented judgment, consid. 2.2).

In this case, the Federal Court held that:

  • A. did not receive detailed information, including the possibility of going to an LAVI counselling center;
  • A. was deprived of his right to receive free and adequate legal advice;
  • Without being advised of his rights as a victim, A. could not have known that he had the opportunity to acquire plaintiff status.
  • The police provided A with inaccurate information, indicating that he could hire an advocate of his choice, at his own expense and not free of charge as provided for in the Act.

Our High Court therefore finds a violation of Art. 305 CPP.

In the second grievance, the Tribunal examines whether A. had made an informed and conscious waiver of his right to sue the security guards at his hearing on February 14, 2022, and whether his waiver could be considered final.

Art. 120 CPP provides that the injured party may at any time declare in writing or orally that he or she waives his or her rights. The waiver is final.

In order for the waiver to be valid, within the meaning of Art. 120 CPP, it must be expressed in a clear and unequivocal manner. The authority must ensure that the complainant intends to waive his or her rights, using pre-printed forms if necessary. The Federal Court states that the ” form must correctly reflect the legal situation, be sufficiently understandable to be completed by a non-lawyer and without the assistance of an employee of a criminal authority, as well as allow clear conclusions to be drawn about the will of the person concerned” (recital 3.1 and references cited).

If it is validly expressed, the renunciation is final (art. 30 para. 5 CP). It is a declaration of will that must be express, i.e. clear and without reservation. A waiver inferred from the circumstances, from conduct, from conclusive acts or from a lack of reaction is excluded, unless the entitled person has been informed accordingly (commented judgment, consid. 3.1).

By analogy with art. 386 al. 3 CPP on the waiver and withdrawal of an appeal (in the broadest sense), the Federal Court holds thata waiver or withdrawal is final, unless the party was induced to make the statement by deception, an offence or inaccurate information by the authorities.

In this case, the Federal Judges find that:

  • A. did not formally state that he was dropping the case against the officers, but simply that he did not wish to file a complaint. A. is an allophone and the translation was done by an interpreter and not by a lawyer;
  • The police did not have a waiver form signed that would clearly and unequivocally indicate that A. intended to waive his rights.
  • A. was heard less than 12 hours after the end of the events and specifically stated that he felt tired and had only slept for an hour;
  • It is possible that A., who arrived in Switzerland only a few months ago, could not distinguish between the criminal prosecution authorities and the private security agents who were responsible for his hospitalization; he may have feared reprisals if he filed a complaint;
  • In particular, A. was not informed of his rights as a victim and was induced to make his statement by inaccurate information from the police, namely the possibility of being assisted by an advocate of his choice, at his own expense, and not free of charge.

In application of art. 386 para. 3 PPC, it cannot be assumed that A. has definitively waived his procedural rights. The cantonal court thus arbitrarily established the facts (the examination of the will of a person is a question of fact, examined under the angle of arbitrariness only according to art. 105 al. 1 LTF) and violated art. 386 para. 3 CPP, considering that the appellant had waived his procedural rights under Art. 120 CPP.

A. should therefore be admitted as a plaintiff, both in the criminal and civil proceedings against the security guards.

It is interesting to note that the Federal Court does not decide whether the minutes of the hearing are still usable, even though the rights provided for in Art. 305 CPP were not given to the victim and that his or her comment is not included in the minutes of the hearing. This issue was apparently not raised by the complainant.

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