Victim of a criminal offence - who can participate in criminal proceedings and how?

An aggrieved person is a person whose rights have been directly violated by a criminal offence (Art. 115 StPO). The person directly injured is the holder of the legal interest protected by the violated criminal provision, i.e. anyone who falls within the scope of protection of the violated criminal provision (BSK StPO- Mazzucchelli/Postizzi, Art. 115 StPO N 21). Furthermore, the Code of Criminal Procedure recognises the concept of the victim, who is also the injured party and whose physical, sexual or psychological integrity has been directly impaired by the offence (Art. 116 Code of Criminal Procedure).

The aggrieved person is one of the "other parties to the proceedings" within the meaning of Art. 105 para. 1 lit. a of the Code of Criminal Procedure. If they are directly affected in their rights, they are entitled to the procedural rights of a party necessary to safeguard their interests (Art. 105 para. 2 of the Code of Criminal Procedure). In addition, the aggrieved person has the right to constitute themselves as a private claimant, thereby participating in the criminal proceedings as a fully-fledged party (see Art. 104 of the Code of Criminal Procedure). In order to actively participate in the criminal proceedings, the aggrieved person must expressly declare themselves as a private claimant (criminal and/or civil claimant) (Art. 118 para. 1 StPO). In the case of offences that are only prosecuted following a criminal complaint, the aggrieved person is deemed to be a private claimant when the criminal complaint is submitted, meaning that a separate additional declaration is not necessary (Art. 118 para. 2 StPO). In the case of official offences that are prosecuted ex officio, however, the person must be constituted as a private prosecutor by submitting a written or oral declaration to the competent public prosecutor's office or the police by the end of the preliminary proceedings at the latest (Art. 118 para. 3 CPC).

By constituting a private prosecution, the injured party is granted party status and thus important procedural rights. These include the right to inspect files, the right to attend hearings, the right to submit motions for evidence, the right to make statements on the case and the proceedings, the right to appeal and the right to have legal counsel present. These rights allow you not only to observe the proceedings, but also to actively participate in shaping them and thus represent your own interests in a targeted and effective manner.

It is possible to bring a criminal action, a civil action or a combination of both. The civil action is used to assert claims under private law that are derived from the criminal offence, such as compensation or satisfaction (Art. 119 para. 2 lit. b StPO, so-called adhesion proceedings, usually derived from Art. 41 ff. OR, Art. 58 and 62 SVG, Art. 28a para. 3 ZGB, etc.).

The group of injured parties does not per se include the legal successors of the injured person, e.g. their heirs, who are only indirectly injured (BSK StPO-Mazzucchelli/Postizzi, Art. 115 StPO N 21a and 26). Art. 121 of the Code of Criminal Procedure must be observed here, according to which the rights of the deceased aggrieved person are transferred to their relatives (see Art. 110 para. 1 of the Swiss Criminal Code: Spouse, registered partner, relatives in the direct line, full and half-born siblings, adoptive parents, siblings and children) in the order of inheritance entitlement. The deceased aggrieved person's right to file a criminal complaint is also transferred to their relatives, who are authorised to exercise this right on their behalf (Art. 30 para. 4 StGB). Special provisions apply to the relatives of victims (so-called indirect victims). These include spouses, children, parents and persons who are similarly close to the victim (Art. 116 para. 2 Code of Criminal Procedure). They are entitled to independent procedural rights, in particular they can - insofar as they assert their own claims under private law (e.g. Art. 45 para. 3 or 47 CO) - constitute themselves as private plaintiffs, which also gives them party status (Art. 117 para. 3 CPC and Art. 122 para. 2 CPC). In this case, they can bring a criminal action at the same time as a civil action (BSK StPO-Mazzucchelli/Postizzi, Art. 115 StPO N 11). If the (direct) victim dies, the relatives can participate in the criminal proceedings both as their legal successor (Art. 121 StPO) and in their own right.

In addition to the possibility of participating in the proceedings by means of an express declaration, participation can also be waived. Such a waiver or the withdrawal of an already filed private action is final and presumably includes both the criminal and civil action (Art. 120 StPO). However, the withdrawal has no influence on any criminal application that may have been filed: this remains in force unless it is withdrawn separately. The reverse applies to the withdrawal or waiver of the right to file a criminal complaint, which also affects the action for adhesion (see Art. 30 para. 5 StGB; BSK StPO-Mazzucchelli/Postizzi, Art. 120 StPO N 3). The waiver of the right to file a criminal complaint should be carefully considered and not be made in the heat of the moment or under emotional pressure. For example, in liability cases where liability is unclear or disputed, an important gain in knowledge can result from the criminal proceedings.

It should be noted that most criminal proceedings (over 90%) in Switzerland are not concluded in court, but rather without a trial, with a so-called summary penalty order. Civil claims can be the subject of a summary penalty order if the accused person recognises the claim or no further evidence is required and the amount in dispute does not exceed CHF 30,000 (Art. 353 para. 2 StPO). Experience to date with this new legal provision shows that it largely remains an "optional provision" and that decisions on claims - even substantiated claims - are very rarely made in summary penalty order proceedings. Under the old rules, civil claims had to be noted in the summary penalty order if the accused person had recognised them. Although no longer expressly mentioned, this still applies and in particular is not limited to the amount of CHF 30,000 (BSK StPO-Daphinoff, Art. 353 StPO N 38 f.). A rejection of the civil claim cannot be made in the summary penalty order (loc. cit., N 51), but there is only the possibility of referring it to civil proceedings, which should be the rule in practice. If court proceedings are initiated, it should be noted that the private claimant must withdraw their civil claim before the conclusion of the main hearing in the first instance if they wish to assert it again in civil proceedings (Art. 122 para. 4 StPO; unlike Art. 65 ZPO).

If possible, the civil claim must be quantified and substantiated when the private claimant is constituted, but at the latest within the period set by the court if court proceedings are initiated (Art. 123 CCP). However, the wording of Art. 318 para. 1 and 1bis (new since January 2024) StPO suggests that the public prosecutor's office no longer notifies the parties who have already constituted themselves as private claimants in advance of the conclusion of the proceedings by means of a summary penalty order (see also BSK StPO-Wiprächtiger/Hans/Steiner, Art. 318 StPO N2, according to which such a final order must also be served on the person already constituted as a private claimant). As a precaution, it must therefore be expected that the summary penalty order will be issued at any time, which is why it is also advisable to quantify and substantiate the claim at an early stage.