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Criminal mismanagement (Art. 158 SCC): The Swiss Federal Court recognises the shareholder of a bankrupt company as a private claimant

In a decision of 28 April 2022 (TF 1B_169/2021 of 28.04.2022), which was recently made public, the Federal Supreme Court departed from its previous practice and rendered a rather unexpected decision in criminal proceedings: our High Court recognised the standing of a shareholder of a company as a party for an offence of criminal mismanagement to the detriment of the company.

The facts of the case

According to the facts of the case, the injured company was declared bankrupt on 30 January 2018. It was subsequently struck off the commercial register on 27 September 2019. Until the liquidation, the shareholder concerned held a minority share in the company. The shareholder filed a criminal complaint on 8 November 2018 against the company’s management for fraud, forgery and mismanagement.

The Basel-Landschaft public prosecutor’s office admitted the shareholder’s party status for the offences of fraud and forgery, but denied it with regard to the offence of unfair management. The Cantonal Court of Basel-Landschaft confirmed this decision and rejected the shareholder’s appeal on this point. The shareholder appealed to the Federal Court.

Reasoning of the Federal Court

The question arose as to whether the shareholder had party status in respect of the allegedly unfair management of the company. The previous court had held that this was not the case, on the grounds that the appellant, a shareholder of the injured company, was not directly affected. According to the previous court’s decision, unfair management directly protects the corporate assets of the legal entities allegedly affected. A shareholder would therefore only be indirectly affected by the offence. Such a position corresponds to what the Swiss Courts, and the Federal Court, have often repeated.

Our High Court recalls first of all that according to Art. 115 para. 1 of the Swiss Criminal Code, an injured person is any person whose rights have been directly affected by an offence.

Sufficient suspicion

In the present case, however, the Federal Court accepted the appeal and held that the appellant was indeed a party to the proceedings in question in respect of the alleged unfair management of the injured company. The Federal Court considers that, given the appellant’s status as a minority shareholder and the context in which the complaint was lodged, it would be excessively formalistic to deny the appellant’s status as an injured party, as a shareholder of the company allegedly injured and liquidated. This is all the more true since, on the basis of the file and the appellant’s explanations, there are sufficient suspicions to consider that the unfair management in question would have led, to the detriment of the injured company and in a causal manner, to the latter’s rapid bankruptcy, which would have resulted in the appellant’s total loss of her share of the company.

Furthermore, the previous court did not explain why the appellant’s party status should be limited, even though related facts had to be examined and the appellant’s party status had to be recognised in any event with regard to the fraud and forgery.

Thus, the Federal Court admitted the appeal on this point and recognised the appellant’s party status as a shareholder of the injured party.

Marie Besse and Naël Ahmed

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