TF, 13.10.2026,7B_1336/2025
Facts
Mr. and Mrs. C.________ are the owners and directors of the company A.________ SA (recital A.a).
In 2021, after being approached by B.________, they agreed to invest in the creation of an entity in Dubai (E.________), of which they were to hold half the share capital, with startup costs to be shared until it became operational (recital A.a).
Between August 2021 and February 2022, a total amount of 79,739.43 CHF was paid directly from the bank accounts of A.________ SA to settle five invoices for E.________'s expenses, with this sum being recorded as a debit to the wife's shareholder account (recital A.a).
In July 2022, Mr. and Mrs. C.________ and the company A.________ SA filed a criminal complaint against B.________ for fraud and breach of trust, after discovering that the Emirati structure had been incorporated as a sole proprietorship of which B.________ was the sole owner (recital A.b).
By order of May 22, 2025, the Geneva Public Prosecutor's Office denied A.________ SA the status of private claimant, a decision confirmed on November 5, 2025, by the Criminal Appeals Chamber of the Court of Justice of the Republic and Canton of Geneva (recital B).
A.________ SA (hereinafter: the appellant) has filed a criminal appeal with the Federal Supreme Court against this cantonal judgment, seeking recognition of its status as a private claimant (recital C).
Law
UnderArt. 118 para. 1 CrimPC, the private claimant is the injured party within the meaning ofArt. 115 para. 1 CrimPC who expressly declares their intent to participate in the proceedings as a criminal or civil claimant (recital 2.1).
The injured party is defined as the person whose rights have been directly affected by a criminal offense, i.e., the holder of the legal interest protected by the infringed provision (recital 2.1).
At the stage of admitting a party as a private claimant, it is sufficient for the complainant to demonstrate that the alleged criminal act likely caused direct harm to their rights (recital 2.1).
Fraud (Art. 146 SCC) and breach of trust (Art. 138 SCC) are offenses against property that protect pecuniary interests and the preservation of entrusted assets (recital 2.2.3).
In the context of fraud, the person deceived (the dupe) is not necessarily the same as the injured party: in cases of triangular fraud, the perpetrator deceives a person with power of disposal over a third party's assets, resulting in damage directly borne by that third party who holds the funds (recital 2.2.1).
Regarding breach of trust (Art. 138 para. 1 subpara. 2 of the Swiss Criminal Code (SCC)), the relationship of trust does not require a prior formal contractual relationship; a de facto relationship or a tacit agreement is sufficient to impose upon the perpetrator the obligation to allocate assets to a specific purpose (recital 2.3.2).
The direct injury required by Art. 115 of the Swiss Criminal Procedure Code (CrimPC) relates to the criminal offense itself and not to the occurrence of uncompensated material damage, since the private claimant may participate in the proceedings solely to support the public prosecution without asserting civil claims (recitals 2.1 and 2.3.3).
Application to the specific case
A decision definitively excluding the appellant from criminal proceedings constitutes a final decision, thereby opening the path for an appeal in criminal matters (Art. 80 andof the Federal Supreme Court Act (LTF)) (recital 1).
On the merits, the cantonal court erred in denying the appellant the status of private claimant (recital 2.3.4).
Regarding fraud (Art. 146 SCC), the situation described constitutes triangular fraud: the company's directors, acting as dupes deceived by the accused, held the legal authority to commit company funds and executed transfers directly debited from the account of A.________ SA (recital 2.3.1).
The assets directly depleted by these acts of disposal are those of the legal entity, which holds the withdrawn funds, thereby establishing its status as a direct victim regardless of the fact that the deception initially targeted the individual shareholders (recital 2.3.1).
Regarding criminal breach of trust (Art. 138 SCC), the payment orders issued by the company explicitly mentioned participation in the costs of establishing the entity in Dubai, which at this stage characterizes a de facto relationship and a tacit agreement to hold corporate assets for a specific purpose (recital 2.3.2).
The argument based on the absence of prejudice—on the grounds that the company holds a compensatory claim recorded as a debit in the shareholder's account—is ineffective, as the status of private claimant may be exercised exclusively to support the public prosecution without requiring the existence of residual civil damage (recital 2.3.3).
Outcome
The Federal Supreme Court allows the appeal and amends the contested judgment to the effect that A.________ SA is recognized as having the status of private claimant (operative provision 1).
The case is remanded to the cantonal court for a new determination of the costs and legal fees of the cantonal appeal proceedings (operative provision 2).
The federal court costs, set at CHF 3,000, as well as legal fees of CHF 2,000 awarded to the appellant, are to be borne by B.________, who has been unsuccessful (operative provisions 3 and 4, recital 3).