No party rights for animal welfare organizations | NZZ

The Federal Court of Lausanne. (Image: Denis Balibouse / Reuters)

In essence, the Federal Supreme Court had to raise an issue in this decision: When is an authority an authority? According to the judgment of the Federal Court, a private animal welfare organization, such as the "Bern Society for Animal Welfare Organizations" (DBT), is not.

The trigger of the current decision was an employment order from the Emmental-Oberaargau Regional Prosecutor. In 2016, she brought criminal proceedings against a farmer for violating the Animal Welfare Act. On the other hand, the DBT appealed to the Bern Supreme Court, but this did not respond to the complaint. Rather, he decided that DBT was not legitimized by the complaint. The DBT was then sent to the Federal Court.

The Canton of Berne Violates the Federal Law

This concludes that the lower court rightly rejected the DBT's right of appeal. Although the Swiss Code of Criminal Procedure (more specifically: Article 104 (2) StPO) provides that the Confederation or the cantons may grant full or limited party rights to the criminal authorities in the exercise of the action public. (As a general rule, only the accused, the private plaintiff and the Crown are considered to be parties to criminal proceedings). However, the management of the canton of Bern is incompatible with the federal provisions.

The Canton of Berne has designated the DBT as the authority in cantonal law and has explicitly stated that it should have the right to take legal action within the framework of cantonal law. criminal proceedings concerning animal protection offenses. However, the Federal Supreme Court considers that the term "authority", as stated in Article 104 (2) of the Code of Criminal Procedure, must be understood in a limited sense. In particular, the organization is not authoritative: It does not matter if the association, called authority, is organized in public or private law. On the contrary, it was decisive "that she has received the fulfillment of a public service common to the public, that they have sovereign powers, that the company and the accounting of their public functions under the supervision of the State (…) and that their public service the state is compensated. "

Criteria not met

These criteria can not be met by the DBT. Although he was subject to the supervision of the Department of Economic Affairs, but the contents of the DBT in the exercise of his party rights is free. Therefore, it can not be assumed that he There is sufficient government supervision, and the DBT was not empowered to exercise its sovereignty and its activity was not compensated by the township.