Federal Supreme Court, 07.11.2025, 7B_425/2024
Facts
In the context of divorce proceedings, the Regional Protection Authority (ARP1) authorized a mother to move to France with her two children on July 6, 2022, declaring its decision immediately enforceable and thereby depriving any potential appeal by the father of suspensive effect. Eight days later, at the father's request, the ARP1 amended its decision to restore the suspensive effect.
The father filed a criminal complaint against the members of the ARP1 for abuse of authority (Art. 312 of the Swiss Criminal Code) and coercion (Art. 181 of the Swiss Criminal Code), alleging that they had intentionally lifted the suspensive effect to disadvantage him. The Public Prosecutor's Office initially dismissed the case, but the Court of Criminal Appeals (CRP) overturned this decision, deeming the investigation insufficient and requiring a determination of whether the ARP1 members were aware of the relevant case law at the time of their decision.
To complete the investigation, the Public Prosecutor's Office requested a written report from the ARP1 instead of questioning its members. Based on this report, the Public Prosecutor's Office once again dismissed the proceedings via a dismissal order. The Cantonal Court upheld this dismissal. The father appealed this ruling to the Federal Supreme Court.
Legal Analysis
The Federal Supreme Court reiterates that a complainant is only entitled to appeal on the merits if the contested decision could influence their civil claims (Art. 81 para. 1 let. b ch. 5 of the Federal Supreme Court Act). In this case, any potential claims for damages against the members of the ARP1 would fall under cantonal public law and not civil claims within the meaning of the Federal Supreme Court Act. The appellant therefore lacks standing to appeal on the merits.
However, regardless of standing on the merits, any party has the right to complain about a violation of their procedural rights, which is equivalent to a formal denial of justice. The right to be heard (Art. 107 of the Swiss Criminal Procedure Code) guarantees, in particular, the right to participate in the taking of evidence (Art. 147 para. 1 of the Swiss Criminal Procedure Code), which includes the right to attend interrogations and ask questions.
Recourse to a written report in lieu of an interrogation (Art. 145 of the Swiss Criminal Procedure Code) must remain an exception, applied with restraint, and must not restrict the rights of the parties. The fundamental principle of criminal procedure remains the oral interrogation.
Application to the Case
The Federal Supreme Court finds that the Public Prosecutor's Office, by merely requesting a written report from the members of the ARP1, violated the appellant's right to participate in the taking of evidence as guaranteed by Art. 147 of the Swiss Criminal Procedure Code. Nothing justified departing from the principle of oral interrogation. The appellant, by not formally requesting a hearing, did not waive his right, as it was the duty of the prosecuting authority to conduct the investigation correctly.
The Federal Supreme Court rejects the Cantonal Court's argument that a referral for interrogation would be useless for the sake of procedural economy (anticipatory assessment of evidence). It highlights two crucial points:
- The written report was not signed by all members who participated in the initial decision.
- The report does not establish whether the members of the ARP1 were aware of the relevant case law at the time of their decision, which was the element deemed "decisive" by the lower court in its first annulment decision.
Consequently, the interrogation was not a superfluous piece of evidence. The violation of the appellant's right to be heard is proven.
Outcome
The Federal Supreme Court allows the appeal. It annuls the Cantonal Court's ruling and remands the case for the court to set aside the dismissal order and instruct the Public Prosecutor's Office to proceed with the interrogation of the ARP1 members, while respecting the appellant's participation rights.
Silex Newsletter published in collaboration with Justine Arnal and Camille Perrier Depeursinge
