Fedpol must reinvestigate the Postbus affair

The Federal Office of Police (fedpol) hired the wrong investigators in the case of subsidies illegally received by PostBus. This is what the Federal Court considers. Fedpol must re-examine the facts they had established and resume the administrative criminal investigation.

In its judgment published on Thursday, the highest court supports the decision of the Bernese Supreme Court which, like the Economic Criminal Court before it, had referred to the Public Prosecutor the accusation against six former executives of the Post Office and PostBus SA.

In question: the external investigators, the former federal judge Hans Mathys and the cantonal judge Pierre Cornu. They investigated for two and a half years from March 2018 into possible breaches of the subsidy law. However, their investiture lacked a legal basis.

Prolongation of the procedure

As noted by the Federal Court, as in previous instances, it was the administration that should have conducted the administrative criminal proceedings against the six officials instead of the external investigators. The investigations undertaken by Hans Mathys and Pierre Cornu themselves, or those ordered directly, must therefore be withdrawn from the file of the procedure.

For fedpol, this means, according to the Federal Court, that it has to repeat important parts of the criminal investigation. “This leads to a prolongation and an increase in the cost of the procedure”, write the judges of Lausanne.

The latter cannot exclude that the administration of evidence is weakened, but this does not oblige fedpol to close the procedure or to simply issue penal orders. In addition, it is always possible that fedpol could obtain, within the framework of other legal proceedings, that the evidence collected by Hans Mathys and Pierre Cornu is exploitable, adds the judgment of the TF.

Evidence available

In its appeal, fedpol argues that the establishment of evidence could be weakened if the investigation were repeated, since the defendants or witnesses have in the meantime become aware of the various statements. The Federal Court recognizes this, but the continuation of the procedure is not called into question.

In addition, a large amount of data has been secured and defendants, persons called upon to provide information and witnesses can be re-examined without great effort, since they are all in Switzerland.

The threat of a statute of limitations in 2024 is also not seen as an obstacle: the new investigators appointed by fedpol, Emanuel Lauber and Sascha Pollace, can rely on extensive preliminary knowledge and the evidence secured .

For these reasons, the Federal Court considers that the principle of promptness has not been violated either. The new persons responsible for the procedure should be fully able to file the new charge in time for the Bernese Administrative Court to issue its judgment by spring 2024 and therefore before the expiry of the limitation period.

Compensation

The Federal Court does not charge court fees in this case. He granted the six defendants compensation of 4,000 francs each, financed by the federal fund.

He accuses their lawyers of fees that are partly clearly exaggerated. The lawyers are all familiar with the case and did not have to spend a lot of time on the 15-page complaint. The legal questions posed are not very complex.

The case broke in 2018 during an ordinary review by the Federal Office of Transport (OFT). This found that PostBus made profits in subsidized regional passenger traffic between 2007 and 2015 and then transferred them to other sectors.

Fedpol had filed a complaint against former PostBus executives accused of using their position to mislead the OFT about profits. They intended to avoid subsequent reductions in compensation. (judgment 1B_363/2021 of April 5, 2022)

Leave a Comment