Author: Lawyer Enrico Gemano

Pursuant to Article 30 of the Swiss Criminal Code (hereinafter CP), “If an act shall be liable to prosecution only if a complaint is filed, any person who suffers harm due to the act may request that the person responsible be prosecuted”. However, the right to file a complaint expires after three months; the period begins on the day that the person entitled to file a complaint discovers the identity of suspect, pursuant to Article 31 CP.

In this respect, Article 301 of the Swiss Code of Criminal Procedure (hereinafter the CPP) recalls that any person is entitled to report an offence to a criminal justice authority in writing or orally, i.e. to the police or to the Public Prosecutor’s Office.

Preliminary is it necessary to distinguish between serious and so-called minor offences. Serious offences are those that are prosecuted ex officio by the authorities as soon as they become aware of them, even if no complaint is filed by the victim.

Among the minor offences, i.e. offences for which the authorities intervene only after a complaint has been filed, we find Common assault (Article 123 CP), Assault through negligence (Article 125 CP) or Acts of aggression (Article 126 CP), which belong to offences against Life and Limb. The offences against property include Unlawful appropriation (art. 137 CP), Misappropriation (art. 138 CP), Theft (art. 139 CP), Fraud (art. 146 CP) and Criminal mismanagement (art. 158 CP), but these offences are only punishable on complaint if they have been committed against a relative or a member of the household. Outside the family circle, such offences are prosecuted ex officio.

Other offences on complaint belong to the offences against Personal Honour and in Breach of Secrecy or Privacy. Defamation (Article 173 CP), Wilful defamation (Article 174 CP), and Insult (Article 177 CP) are the best known. Also among the offences prosecuted on complaint, which are defined Felonies and Misdemeanours against Liberty, are the offence of Threatening behavior (Article 180 CP) and Unlawful entry (Article 186 CP). Among Offences against Sexual Integrity we find Indecent conduct (art. 194 CP) and Sexual harassment (art. 198 CP), and finally, among Felonies and Misdemeanours against the Family we find Neglect of duty to support the family (art. 217 CP) and Abduction of minors (art. 220 CP). The list is not exhaustive but covers the best-known offences.

As a rule, since the legal qualification of the facts is the responsibility of the prosecution authorities, the complainant, in addition to declaring his unconditional willingness to proceed against the complained, is merely required to set out a sufficient account of the course of events, without being obliged to qualify the offence or provide further information¹. The complainant constitutes himself as private claimant under Article 119(2)(a) of the Code of Criminal Procedure, seeking the prosecution and punishment of the person responsible for the offence, and under Article 119(2)(b) of the Code of Criminal Procedure, asserting his private-law claims arising from the offence. A private claimant is an injured party who expressly declares that he is participating in the criminal proceedings by bringing a criminal or civil action (Art. 118 of the Code of Criminal Procedure).

However, it should be noted that under Article 303 (1)(1) CP any person who makes an accusation to the authorities that a person whom he knows to be innocent has committed a felony or a misdemeanour, with the intention of causing a criminal prosecution to be brought against that person shall be liable to a custodial sentence or to a monetary penalty. From an objective point of view, the commission of the offence presupposes that an innocent person is reported to the authorities as the perpetrator of a crime or offence². From the subjective point of view, the offence of false accusation implies intent. The complainant, in addition to being aware of the criminal punish ability of the facts the complained is accused of, must know that the accusation he or she has made is false: it matters little whether this awareness of falsity relates to the commission of the offence as such or to the identity of the offender, or to both. Dolus eventualiis is not sufficient³. The jurisprudence has established that “innocent” within the meaning of Article 303 CP, is who did not commit the criminal act. This also includes a person against whom a final acquittal has been pronounced or whose criminal proceedings have resulted in a decision of abandonment (ruling abandoning proceedings or no-proceedings order)⁴.

¹ Judgement of the Court of Appeal of Canton Ticino (hereinafter CARP) dated 26.11.2015, no. 17.2015.70 and 17.2015.183, p. 7, para. 11a

² CARP 8.06.2016, number 8, inc. 17.2015.214

³ CARP 8.06.2016, number 8, inc. 17.2015.214

⁴ CARP 8.06.2016, number 8, inc. 17.2015.214