Federal Supreme Court, 12.03.2026, 7B_42/2026
Facts
Criminal proceedings for criminal mismanagement have been opened against A., a financial advisor. He is accused of convincing clients to invest 528,420 euros in an apartment in the Czech Republic, for which they never became the owners. The funds were allegedly misappropriated by B., a co-defendant, who acquired the property in her own name. The accounts of the two defendants are contradictory: A. maintains that he acted on B.'s instructions and was deceived by her, while B. claims that the funds were a gift from A.
The Geneva Public Prosecutor's Office decided to dismiss the criminal proceedings against B., concluding that there was no suspicion justifying her indictment. At the same time, it referred A. to trial for aggravated criminal mismanagement, or alternatively, fraud. A. appealed against the dismissal order concerning B., but the Criminal Appeals Chamber of the Geneva Court of Justice declared his appeal inadmissible on the grounds that he did not have a legally protected interest. A. then appealed to the Federal Supreme Court.
Legal Analysis
The Federal Supreme Court reiterates the conditions for standing to appeal in criminal matters underArt. 382 para. 1 CrimPC. To have standing, a party must have a "legally protected interest" in the annulment or modification of the decision. This interest must be direct, immediate, actual, and practical, rather than a mere factual interest. The appellant must be affected in their own rights.
The Court then examines the presumption of innocence (Art. 32 para. 1 Cst. and Art. 6 para. 2 ECHR). This principle prohibits a judicial authority from making premature statements regarding the guilt of an accused person before a final judgment has been rendered. This guarantee also applies in parallel or related proceedings. A dismissal order in favor of a co-defendant may violate the presumption of innocence of another defendant if its reasoning contains elements that prejudge the latter's guilt. Indeed, a final dismissal order is equivalent to an acquittal (Art. 320 para. 4 CrimPC) and acquires the authority of res judicata, which prevents the facts classified in the proceedings from being revisited in subsequent proceedings.
Application to the specific case
The Federal Supreme Court contradicts the analysis of the cantonal court. It notes that the accounts of the two defendants, A.________ and B., are mutually exclusive and incriminate one another. By dismissing the proceedings against B., the Public Prosecutor's Office explicitly held that the latter's version (according to which the funds were a gift from A.________) was not contradicted by any evidence.
By validating this version of events, the dismissal order implies that A.________ misappropriated client funds to benefit B.. This conclusion constitutes a premature assessment of A.'s guilt, even before their trial has taken place.
Contrary to the ruling of the previous authority, A.________ will not be able to fully defend themselves at trial. The dismissal order in favor of B., once it becomes final, will have the authority of res judicata. The trial judge will therefore be unable to deviate from the facts established in that order or find B. criminally liable in any way, without violating the latter's presumption of innocence. Consequently, A.________ will be prevented from freely challenging B.________'s version of events and asserting their own, which directly affects their rights of defense.
In such a scenario, where the protagonists accuse one another, a dismissal based on the version of one party necessarily infringes upon the presumption of innocence of the other. A.________ therefore has a legally protected interest in challenging this dismissal order.
Outcome
The Federal Supreme Court allows A.'s appeal. It sets aside the judgment of the Criminal Appeals Chamber of the Geneva Court of Justice, which had declared the appeal inadmissible. The case is remanded to the cantonal authority to address the merits of A.'s appeal against the dismissal order and to issue a ruling.