In a decision to be published 6B_1310/2021 of 15 August 2021 the Federal Supreme Court addressed the following two questions: (1) whether it is possible to award civil claims on the basis of Art. 41 CO in case of acquittal and (2) whether contractual claims can be the subject of a civil action by joining the criminal proceedings.

A/ The facts

By judgment of November 20, 2020, the Police Court of the Republic and Canton of Geneva acquitted A. of the charges of breach of trust and fraud, but ordered him to pay, jointly and severally with F.___ Sàrl, as damages, CHF 130,500 to B.B. and C.B., CHF 87,000 to D. and CHF 130,500 to E.___ SA

In a judgment dated September 16, 2021, the Criminal Chamber of Appeal and Review of the Geneva Court of Justice confirmed A.’s acquittal and ordered him to pay damages in the amount of the amounts awarded in the first instance.

A. brought the case to the Federal Court and requested that all civil claims of B.B., C.B., D. and E.___ SA be dismissed.

The awards made to the plaintiffs by the trial and appellate courts are based on two grounds: unlawful conduct under Art. 41 CO and a loan agreement dated July 18, 2012, under which F.___ Sàrl and A., acting as an organ of F.___ Sàrl, but also as a joint and several guarantor, borrowed a sum of CHF 450’000.- from B.B., G.___ SA, D. and E.___ SA.

The loan consisted of the provision of funds to F.___ Sàrl for the acquisition of plots. For its part, F.___ Sàrl had undertaken to entrust the execution of the work resulting from the said investment to G.___ SA, which in turn had promised to grant E.___ SA and
H.___ SA the related work. The main reason for the investments was the involvement of these companies in the realization of the upcoming project.

Delays in obtaining building permits had led A. to attempt to renegotiate the term and price of sale with the sellers. In this context, the sellers demanded a new advance of one million for which A. approached the investors. The investors did not wish to participate and asked A. and F.___ Sàrl to repay the loans.

Finally, it should be noted that the sale of the plots of land was not finally possible.

It is on the basis of this state of affairs that the Federal Court will analyze and resolve the question of whether it is possible to acquit an accused person and, at the same time, to order him to pay compensation to an injured party.

B/ The law

  1. The concept of civil claims under Art. 122 PPC

Within the meaning of Art. 126 al.1 let. b CPP, the court shall also rule on civil claims presented when it ” acquits the accused and the state of facts is sufficiently established “. The court refers the civil party to the civil proceedings when the accused is acquitted and the factual situation has not been sufficiently established (art. 126 al.2 let. d CPP). In this respect, the Federal Court notes that a verdict of acquittal can lead to a civil conviction of the defendant – it being recalled that, according to art. 53 CO, the criminal judgment does not bind the civil judge – only when the plaintiff is dismissed (judgment under review, recital 3.1.1).

Citing its own jurisprudence, the Federal Court recalls that,as a general rule, if the acquittal is based on legal grounds, in the event of the non-fulfillment of a constituent element of the offence, the conditions for a civil action by adherence to the criminal procedure are lacking and the civil claims must be rejected. The criminal judge may nevertheless rule on the civil claims, notwithstanding the acquittal of the accused, when the constitutive element of the offence is missing, but the conduct alleged against the accused constitutes an unlawful act under Art. 41 CO. The Federal Court cites as examples damage to property due to negligence or the case of the defendant who is irresponsible in the sense of Art. 19 al. 1 CP (commented judgment, consid. 3.1.1).

According to the text of Art. 122 para. 1 of the Swiss Penal Code, the plaintiff can assert civil claims against the accused only if they are deducted directly from the offence. Our High Court recalls that, in the majority of cases, the legal basis for civil claims is to be found in the rules relating to civil liability, i.e. art. 41 ff CO. The complainant can thus claim compensation for damages and moral harm if they are directly related to the offence of which the accused was accused and which was investigated in the preliminary proceedings and then in the first instance proceedings and which is mentioned in the indictment of the Public Prosecutor’s Office (judgment commented on, recital 3.1.2).

The Federal Court recalls that, in addition to claims based on the civil liability of the accused, the doctrine recognizes the possibility for the plaintiff to assert, within the framework of the criminal proceedings, conclusions based on actions for the protection of the personality, in claim or possessory, as well as the action provided for in the law on unfair competition. However, the doctrine is more divided with regard to civil claims based on contractual claims (commented judgment, recital 3.1.3).

The Federal Supreme Court resolves this doctrinal controversy for the first time by conducting a historical, literal, teleological and systematic analysis of Art. 122 al. 1 CPP. He concludes that the concept of civil claims does not cover all private law claims, but only those that can be derived from a criminal offence, which is not the case for contractual claims.

The reasoning of the Federal Court in reaching this conclusion is as follows:

  1. From a historical point of view, our High Court notes that the cantonal practices were heterogeneous and that the message relating to the unification of the Code of Penal Procedure did not make it possible to clarify the notion of “civil claims” (judgment under review, recital 3.2.1).
  • According to the text of the law, the civil claims raised by the injured party must be rooted in ” the facts from which the criminal prosecution authority deduces the offence prosecuted “; these are referred to as ” civil claims deduced from the offence “. The Federal Court notes that civil claims other than those based on the defendant’s aquilian responsibility, which are admittedly subject to an adhesive civil action, have in common the existence of an unlawful act that motivates them. Now, contractual claims are based on and independent of a contract, not the existence of a violation. They are not deduced from a criminal act (judgment under review, recital 3.2.2).
  • From a teleological point of view, the Federal Court recalls that the civil action by joining the criminal proceedings allows the injured party to obtain the allocation of his civil claims without having to initiate a separate procedure before the civil judge and pursues in particular an aim of procedural economy (we speak of a civil trial integrated with the criminal trial). The inherent procedural arrangements(ex officio investigation by the criminal authority) are justified by the special position in the criminal proceedings of the person whose rights have been directly affected by the offence. The civil action thus has its origin in a criminal offence and thus has a criminal aspect resulting from the damage suffered by the injured party, allowing him to bring his action before the criminal court.

Therefore, the principle that criminal proceedings should not be a “mere vehicle” for asserting civil claims applies to the relationship between criminal and civil actions within criminal proceedings (judgment under review, para. 3.2.3). In this respect, the decision referred to above refers to the decision of the Federal Court 6B_478/2021 of April 11, 2022. 1.3 and references cited.

  • Still, according to our High Court, the systematic interpretation joins this approach. Art. 126 al. 1 let. b CPP assumes that the complainant has made civil submissions that can be accepted under Art. 122 al. 1 CPP. According to this provision, only the injured party, i.e. the person whose rights have been directly affected by an offence, can be a plaintiff. However, according to the Federal Court, the rights of a person who has a contractual claim against his co-contractor are not directly affected by a criminal offence within the meaning of Art. 115 al. 1 CPP.
  • The federal judges note that the Code of Civil Procedure only reserves the jurisdiction of the criminal court in relation to an unlawful act, Art. 39 CPC found in Section 7 of Chapter 2 on actions based on a wrongful act.

Therefore, contractual claims cannot be the subject of a civil action by joining the criminal proceedings; thus, they are excluded from the scope of Art. 122 al. 1 CPP and the civil party must be referred to act by the civil way.

  • The case in point

The cantonal court had acquitted the appellant of the charge of breach of trust because of the non-fulfilment of both the objective – the fact of having used the entrusted assets in violation of the instructions received and of having diverted them from the destination fixed by virtue of the relationship of trust – and subjective elements. With regard to the offence of fraud, she denied that the appellant had been in a position of guarantor, the existence of a clever deception and the intention of the appellant. The Federal Court thus considers that The cantonal court could not, on the one hand, hold that no unlawful use of the assets entrusted to the appellant could be blamed on him and, on the other hand, find that the appellant had appropriated the funds loaned in violation of his powers in order to establish civil liability within the meaning of Art. 41 CO.

In such a context, the conditions for a civil action by joining the criminal proceedings were lacking, so that the cantonal authority should have rejected the civil claims based on Art. 41 CO. The cantonal court violated federal law by granting the civil claims to the respondents on the basis of Art. 41 CO, whereas the appellant was acquitted on legal grounds.

The cantonal court had also ordered the appellant to pay the interest due on the basis of the loan agreement, because he was a joint and several debtor within the meaning of Art. 143 al. 1 CO alongside F.___ Sàrl. Now, contractual claims may not be the subject of a civil action by joining the criminal proceedings in accordance with Art. 122 al. 1 CPP. The cantonal court should therefore have referred the respondents to civil proceedings in respect of their claims arising from the said loan agreement.

The Federal Court thus admitted the appeal and remanded the case to the cantonal court so that it could refer the respondents to the civil action with regard to their civil claims against the appellant based on the loan agreement concluded on July 18, 2012.

C/ Conclusion

Finally, this judgment has the merit of clarifying the scope of art. 122 al. 1 CPP. The concept of civil claims does not cover all private law claims, but only those that can be derived from a criminal offence. Contractual claims, on the other hand, cannot be the subject of a civil action by accession unless they also constitute a criminally reprehensible unlawful act. In such a case, the court can only refer the civil party to act through the civil route.

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