On 14 February 2018, the Federal Office of Transport (FOT) filed a criminal complaint with the OAG and with the public prosecutor’s office Bern-Mittelland. After examining the circumstances of the case, both the OAG and the Chief Public Prosecutor of the Canton of Bern have concluded that the infringements alleged in the complaint are a matter of administrative law. Under Articles 27 and 39 of the federal law on subsidies, any suspected infringements must be prosecuted and judged by the federal office responsible. According to the criminal complaint, this office is the FOT.
For an investigation to be conducted by the OAG or the cantonal public prosecutor’s office, there must be reasonable suspicion that an offence has been committed under the Criminal Code. At present this is not the case as far as the complaint filed by the FOT is concerned.
Accordingly, neither the federal nor the cantonal prosecution authorities have any statutory basis to investigate the allegations that excessive subsidies have been received. The Subsidies Act states clearly that suspected infringements must be prosecuted and judged by the federal office responsible. The Federal Council has the power to appoint a different federal administrative unit to carry out the investigation.
As is customary in these cases, Attorney General Michael Lauber and Bern’s chief public prosecutor, Michel-André Fels, discussed in a professional exchange the content of the criminal complaint and in particular the issue of jurisdiction. Both agree with the current legal theory and practice that the prosecution authorities are not responsible for investigating allegations of subsidies fraud.
K Nadeesha Madhushani Karunathilaka ist bei S-FinaCons verantwortlich für Public Relations & Kommunikation. Sie absolvierte ein Wirtschaftsstudium mit Schwergewicht auf Betriebswirtschaft, Ökonomie und Rechnungswesen. Nadeesha verfügt zudem über ein Diplom als Englischlehrerin. ***** K Nadeesha Madhushani Karunathilaka is responsible for Public Relations & Communication at S-FinaCons. She studied Commerce, including Business studies, Accounting and Economics. She holds a National Diploma in teaching English.