In a new Federal Supreme Court ruling (6B_1002/2023 of 15 November 2023), the court of first instance found the complainant guilty of petty theft. The appellant lodged an appeal against this, whereupon the district court gave reasons for the judgement, and forwarded the files to the Lucerne Cantonal Court for appeal proceedings. On 21 June 2023, the court did not hear the appeal because it had not received a statement of appeal (i.e. the reasons why the appellant was appealing) within the deadline. According to the „Track & Trace“ statement, the reasoned judgement of the district court was reported for collection on 12 May 2023 and returned on 20 May 2023 after the appellant failed to collect it within the deadline. The district court judgement is therefore deemed to have been served.

The appellant lodged an appeal with the Federal Supreme Court. He claimed that he never received an invitation to collect the judgement of the court of first instance, which was sent by registered post, and was therefore unable to submit a statement of appeal.

In criminal proceedings, a registered letter that has not been collected is deemed to have been delivered on the seventh day after the unsuccessful delivery attempt, provided that the person could have expected delivery. The burden of proof for the delivery of orders and decisions lies with the authorities. Contrary to this rule, in the case of registered mail there is a rebuttable presumption that the mail item has been delivered correctly (delivery note with correct date in the letterbox). In order to rebut this presumption, there must be concrete evidence that suggests an overwhelming probability of errors in the delivery.

The fact that the appellant complained to Swiss Post about incorrect postal delivery immediately after service of the lower court’s decision not to intervene, whereupon Swiss Post admitted that a letter had been incorrectly notified and that the appellant had had no opportunity to collect it, raised considerable doubts in the Federal Supreme Court’s Opinion as to whether Swiss Post had served the reasoned judgement correctly. The Federal Supreme Court therefore ruled that the reasoned judgement of the court of first instance had not been served with legal effect.

Swiss Post also makes mistakes. This should be well documented during legal proceedings.