Federal Supreme Court, 19.03.2026, 7B_1062/2025
Facts
The appellant, A.A.________, was convicted of multiple counts of breach of trust (Art. 138 of the Swiss Criminal Code) to the detriment of his deceased mother. Between 2006 and 2008, he used a general power of attorney to make significant cash withdrawals and fund transfers from his mother's accounts, totaling several hundred thousand francs. His mother had suffered a stroke in April 2006, rendering her incapable of discernment regarding these financial transactions.
A guardianship was established in January 2007. After an initial guardian failed to perform his duties, a second guardian, D.________, was appointed on April 1, 2009, and remained in office until the mother's death in October 2009.
The appellant argued before the Federal Supreme Court that the criminal proceedings were time-barred. He maintains that the guardian, D.________, and the adult protection authority were aware, or should have been aware, of the criminal activities during the guardianship in 2009. Consequently, he argues that the three-month deadline for filing a criminal complaint (Art. 31 of the Swiss Criminal Code) had begun to run and expired at that time, rendering any subsequent prosecution inadmissible.
Legal Analysis
The Federal Supreme Court reiterates the principles governing the time limit for filing criminal complaints for offenses prosecuted upon request, such as breach of trust (Art. 138 para. 1 and 4 of the Swiss Criminal Code).
According toArt. 31 of the Swiss Criminal Code, the right to file a complaint expires after three months. This period begins on the day the entitled party becomes aware of both the perpetrator and the offense. Jurisprudence requires certain and reliable knowledge of the facts; mere suspicion is insufficient. The entitled party must possess information solid enough for a criminal action to appear likely to succeed and to protect them against a potential charge of malicious prosecution. This knowledge must encompass all constituent elements of the offense, including subjective aspects (the perpetrator's intent).
Crucially, the Federal Supreme Court emphasizes that the complaint period only begins upon actual knowledge. The fact that the entitled party (or their legal representative, such as a guardian) could or should have known about the offense by exercising greater diligence is irrelevant to triggering the deadline. A breach of duty by the victim's representative does not trigger the statute of limitations for the complaint.
Application to the Case
The Federal Supreme Court examines whether the lower court's conclusion—that neither the guardian, D.________, nor the adult protection authority possessed the knowledge required to file a complaint in 2009—was arbitrary.
The Court upholds the lower court's assessment. The guardian, D.________, testified that he had unsuccessfully attempted to contact the appellant to draw up an inventory of the mother's assets. Although he obtained certain bank documents and noted withdrawals, he lacked an overview of the scale of the transactions and had no knowledge of their context or purpose. He could not, therefore, determine with certainty whether these transactions were illegitimate or served his mother's needs. His impression that the appellant was "living off his mother" was a matter of suspicion, not the certain knowledge required by law. Revoking the general power of attorney was a precautionary measure taken due to the appellant's lack of cooperation and to avoid personal liability, not a confirmation of a proven crime.
The Federal Supreme Court rejects the appellant's argument that the guardian "should have known." In accordance with legal principles, only actual and certain knowledge triggers the complaint period. The fact that further investigations might have revealed the offenses is irrelevant. The Court therefore concludes that the lower court did not act arbitrarily in ruling that the guardian did not possess the necessary information to file a criminal complaint in 2009. The complaint period had not, therefore, begun to run at that time.
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The legal costs are to be borne by the appellant.
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