Compensation obligation of private plaintiffs in criminal proceedings

Once again, the Federal Supreme Court clarified its case law regarding the obligation to compensate private plaintiffs in criminal proceedings in a decision of 17 December 2020(6B_582/2020) that is intended for official publication and is important for criminal lawyers.

During legal counselling in connection with criminal proceedings, clients understandably often ask questions about possible cost consequences. Clients would like to know, for example, what their cost risk is if a decision is appealed. In the event of losing, the question arises as to whether one can be obliged to pay compensation to another party.

A recent decision of the Federal Supreme Court(6B_582/2020) illustrates that questions of costs are not always easy to answer. The legal situation is complex for the cost consequences of the private plaintiff and a mere glance at the law is not sufficient because the Federal Supreme Court has developed extensive case law in several leading decisions.

The question addressed in the above-mentioned decision is under which conditions the private plaintiff (who submits motions in the guilty plea) has to bear the compensation of the winning defendant.

In the oldest of the leading decisions cited in the ruling, the Federal Supreme Court assumes that the person filing the application who participates in the proceedings as a private plaintiff should in principle also bear the full cost risk, while the person who only files a criminal complaint and withdraws as a private plaintiff only becomes liable to pay costs in the event of dilatory conduct(BGE 138 IV 248, E. 4.2.2 f.). Costs of proceedings and compensation are treated in parallel. In principle, the costs are imposed on the polluter(BGE 138 IV 248, E. 4.4.1).

In the leading judgment BGE 139 IV 45, the Federal Supreme Court held that the general principle of subordination (as for the costs of proceedings) applies to the adequate defence costs of the accused person. If the private plaintiff alone appeals and is unsuccessful, it can therefore be ordered to pay both the costs of the proceedings and the compensation for the adequate defence costs of the acquitted accused.

In BGE 141 IV 476, the Federal Supreme Court clarified the case law introduced in BGE 139 IV 45: The private plaintiff only bears the adequate defence costs if a full court proceeding took place and only the private plaintiff appealed the first instance decision. The private plaintiff's obligation to pay compensation was thus limited to the appeal and was no longer applicable to appeals against discontinuance and non-acceptance orders (because no full judicial proceedings take place beforehand).

In the decision mentioned above(6B_582/2020), which is also intended for publication, BGE 141 IV 476 is clarified: Irrespective of whether a full judicial proceeding took place, the compensation of the accused person in the case of petition offences is regularly at the expense of the private plaintiff (who takes legal action alone). The differentiation introduced in BGE 141 IV 476 therefore only applies to official offences.

In conclusion, the case law can be summarised as follows: In appeal proceedings concerning official offences, the private plaintiff is liable to pay compensation, whereas in appeal proceedings (e.g. against a non-acceptance or discontinuance order), the state is liable to pay compensation. In the case of offences for which a petition has been filed, the private plaintiff is liable to pay compensation in both the appeal and the complaint proceedings.

The differentiation between official and application offences is likely to be challenging, especially in the case of appeals against non-adoption and discontinuation orders, because it may be disputed whether the offence is an application offence or an official offence and there is no judicial assessment. This question can arise in the case of offences such as data corruption(Art. 144bis SCC), because the basic offence is a request offence and the offence is only prosecuted ex officio (official offence) if a great deal of damage has been caused.

If you have any questions about costs in criminal proceedings, Sebastian Wälti will be happy to help.