TPF, 03.18.2026, RR.2026.28, RP.2026.12
Facts
On March 6, 2026, the Public Prosecutor's Office of the Canton of Schaffhausen decided to take over criminal proceedings initially conducted by the Public Prosecutor's Office of Waldshut-Tiengen (Germany) against B. for offenses including theft, unlawful appropriation, and violation of postal secrecy. This decision was notified to the German authorities, the accused B., and the complainant, A.
On March 9, 2026, A. filed an appeal with the Appeals Chamber of the Federal Criminal Court against this decision to take over the case. The primary requests were for the annulment of the decision, a finding of procedural violation by the prosecutor, the granting of suspensive effect, and the granting of free legal aid.
Law
The Appeals Chamber reiterates the principles governing its jurisdiction and the admissibility of appeals in this matter.
- Regarding international mutual legal assistance (art. 85 IMAC): The Court has jurisdiction over appeals concerning international mutual criminal assistance. In principle, Switzerland may, at the request of a foreign state, conduct criminal prosecution for an offense committed abroad. The decision to accept such a request is made by the Federal Office of Justice (FOJ). However, bilateral treaties, such as the one between Switzerland and Germany, allow the criminal prosecution authorities of both countries to communicate and delegate proceedings directly. Law and jurisprudence consistently establish that a decision to take over a criminal prosecution by a Swiss authority, within the framework of mutual assistance, is not subject to an independent appeal before the Appeals Chamber. This rule also applies by analogy when Switzerland has original jurisdiction.
- Regarding venue (art. 40 CrimPC): When a party contests the jurisdiction of a criminal authority (intercantonal venue conflict), they must follow a specific procedure. They must first request that the authority seized of the case refer it elsewhere. If the latter maintains its jurisdiction, it transmits the file to a cantonal body that issues a formal decision on the venue. Only this formal decision is subject to appeal before the Appeals Chamber of the Federal Criminal Court. A direct appeal against the initial decision of the criminal prosecution authority is not provided for.
- Declaratory claims: Such claims are subsidiary and are only admissible if the appellant demonstrates a specific and current interest worthy of protection in the requested finding. They cannot concern purely theoretical or abstract questions.
- Free legal aid (art. 65 APA): The granting of legal aid is subject, among other conditions, to the requirement that the applicant's claims do not appear doomed to failure from the outset (requirement of chances of success).
Application to the specific case
The Appeals Chamber analyzes A.'s appeal from two main perspectives.
First, considering the contested decision as an act of international mutual legal assistance (the resumption of criminal proceedings delegated by Germany), the Court finds that, under applicable law, such a decision is not subject to an independent appeal. Whether Switzerland's jurisdiction is original or delegated does not change this conclusion. The appeal is therefore inadmissible in this regard.
Second, interpreting the appeal as a challenge to the venue (the jurisdiction of the Schaffhausen Public Prosecutor's Office), the Court notes that the appellant failed to follow the legal procedure set out in Art. 40 of the Swiss Criminal Procedure Code. The contested decision is not a formal decision on venue that can be brought before the Appeals Chamber. The appeal is therefore also inadmissible in this regard.
Regarding the request to establish a procedural violation by the prosecutor, the Court finds that the appellant has not demonstrated any specific and current interest justifying such a finding, which is by nature subsidiary.
As the appeal is manifestly inadmissible on all counts, it has no prospect of success. Consequently, the request for free legal aid must be rejected. The other requests, including the one seeking a stay of execution, become moot due to the inadmissibility of the main appeal.
Outcome
The Appeals Chamber of the Federal Criminal Court declines to hear the appeal, declaring it manifestly inadmissible.
The request for free legal aid is rejected to the extent that it has not become moot, due to the total lack of prospects for the appeal's success.
Exceptionally, no court costs are charged to the appellant, as the contested decision from the Schaffhausen Public Prosecutor's Office contained incorrect information regarding legal remedies, which may have misled them.
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