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III.Landmark Cases

The Federal Supreme Court in Lausanne is Switzerland’s highest court. Its criminal law division was formerly known as the Court of Cassation. In dealing with criminal law, its main task is to secure the consistent application of the Swiss Criminal Code throughout Switzerland. In the following paragraphs, some landmark rulings of the Federal Supreme Court will be discussed.

1. ROLLING STONES35

In the evening of 21 April 1983, two men (A and B) were on their way home from their cabin in the Töss river valley near Zurich. They spotted two big stones (individually weighing 52 kg and 100 kg) at the top of slope so steep that the bottom was not visible. They decided to roll these stones down the slope. A pushed the 52 kg stone down the hill, whilst B pushed the heavier, 100 kg stone. One of these stones struck and killed a fisherman at the foot of the slope. However, it could not be established which of the two stones had killed him, and therefore who – A or B – had been responsible for the death.

When the case came before the Supreme Court, the judges held that A and B were criminally liable as co-offenders for negligent homicide. Up until that ruling, the notion of co-offending was strictly limited to intentional crimes. This seemed logical because the conventional view of co-offending generally requires the existence of a conspiracy: at least two persons who embark on a common criminal pursuit. However, in the “rolling stones” case there was no joint decision (conspiracy) to kill the fisherman. By deciding to roll the stones down the slope, A and B jointly engaged in a grossly negligent behaviour that caused the death of the fisherman. The Supreme Court ruling was an attempt to overcome problems of evidence, by employing the tools of the substantive criminal law.36

2. DOMESTIC TYRANT37

X was a very poorly integrated immigrant from Kosovo. She was married to Y, whom she had five children with. Y constantly abused X: he beat her with the cable of a vacuum cleaner, he threw a butcher’s knife at her, he banned her from leaving the house and tore up her passport. In January 1993, he told their eldest daughter that her mother was going to die during the course of that year. On 15 March 1993, Y showed his wife a revolver he had bought in order to kill her. He then put it under his pillow and went to sleep. At one o’clock in the morning, X took the revolver and shot Y dead while he was sleeping.

The Supreme Court ruled that X had acted in a state of excusable necessity to end her suffering. The killing of her husband was unlawful (Article 113 – manslaughter): there was no legal justification for her actions. She had not acted in legitimate self-defence (Article 15) for Y was not imminently about to attack her. However, she did not act culpably (Article 19 – excusable act in a situation of necessity). She was excused because her life was in danger and she saw no other way out.38

This 1995 case seems to send out a very strong message against domestic violence. However, its applicability should not be over-interpreted. X’s situation was extreme: the law would normally still expect victims of abuse to call for help before resorting to such an act.

3. DEADLY CAR RACE39

In the late evening on 3 September 1999, two motorists who had never met before and who were both driving a Volkswagen Corrado started a car race on a cross-country road near Lucerne. As the two drivers were approaching the village of Gelfingen at a speed of approximately 130km/h, one driver sought to overtake the other. He subsequently lost control of his car, which veered onto the sidewalk and hit two teenagers who were killed instantly.

Both of the drivers were convicted of homicide (Article 111) and sentenced to 6.5 years of imprisonment. The Federal Supreme Court upheld this conviction. For the first time in a binding precedent, persons responsible for a fatal car accident were convicted of homicide with conditional intent (dolus eventualis). Up until that case, even accidents caused by gross carelessness were always classified as criminal negligence. The Supreme Court argued that not only did the drivers know that their behaviour was extremely dangerous, but that by putting achieving victory in the race above everything else, they had willingly accepted a deadly outcome.

From a retributive point of view the decision can be understood. The maximum penalty of 3 years for a negligent double homicide just did not fit the crime. From a dogmatic point of view, however, the ruling is highly problematic. The drivers knowingly incurred an extremely high risk by engaging in a car race. But the Court made a large leap from here: the fact that the drivers knew of the risk led the Court to the conclusion that they had accepted the fatal outcome. To draw a straight inference from what someone knew to what someone wanted has far-reaching consequences for criminal liability in general. It is highly unlikely that the drivers wanted to kill the teenagers, or even that they were indifferent to such an outcome.40 It is much more likely that they (wrongly) trusted their driving skills and hoped for a lucky outcome.41 In other words, they willingly accepted the risk of death, but they did not accept the actual outcome of death. Thus, they should have been convicted for life endangerment (Article 129) which allows a maximum prison sentence of 7.5 years.42

4. HIKING IN THE NUDE43

On a warm and sunny Sunday afternoon in autumn 2009, 45-year-old X was hiking in the nude through the mountains of Appenzell Innerrhoden. He walked by a fire-pit where a family with young children was resting and past a Christian rehabilitation centre for people with drug-addictions. A woman who observed him filed a report with the local police.

Article 19 of the relevant cantonal code which regulated “indecent behaviour” provided that “any person publicly displaying indecent behaviour is liable to a fine.” The Federal Supreme Court first considered whether the Canton of Appenzell Innerrhoden had exceeded its legislative powers by legislating on indecent behaviour, considering the fact that the Federal Parliament has exclusive legislative competence in the field of sexual offences. The court found that because walking in the nude did not qualify as exhibitionism, sexual harassment, or pornography, the cantonal legislator possessed the power to legislate on indecency. Secondly, the Court considered whether the notion of “indecent behaviour” in Article 19 was sufficiently clear to satisfy the nulla poena sine lege principle. They held that the provision was sufficiently clear, deeming walking in the nude as obviously indecent behaviour.

Both of the Court’s assessments are questionable. When considering the issue of the canton’s competence to legislate on indecent behaviour, it should be noted that the Federal Parliament generally restricted sexual offences to harmful behaviour (rape, sexual harassment, etc.). Parliament made some specific exceptions (e.g. exhibitionism, pornography) to this general rule: this can be interpreted as the federal legislator setting the outer limit for the criminalisation of immoral conduct. Hence, following this view, there was no room for a cantonal rule on indecent behaviour: Appenzell Innerrhoden had acted out-with their legislative competence. Regarding the Court’s ruling that Article 19 was sufficiently clear to satisfy the principle of nulla poena sine lege, here they missed the key point. The question was not whether hiking in the nude can be classified as indecent behaviour, but whether such a classification was foreseeable given the broad and changeable notion of “indecency”. If the legislator wants to ban walking in the nude, they must and should issue an unambiguous rule, for example: “Any person who displays nudity in public is liable to a fine.”

35BGE 113 IV 58.

36Concurring that the Supreme Court’s reasoning was flawed, PETRIG/ZURKINDEN argue that it would have been better to hold A and B liable for negligent, parallel perpetration by omission – this presupposes A and B are in “guarantor” position due to the fact they both created a risk (i.e. they would incur criminal liability for failing to prevent each other from rolling the stones down the hill), p. 124.

37BGE 122 IV 1

38See unreasonableness standard, p. 389.

39BGE 130 IV 58.

40As is required for the offender to possess conditional intent, see p. 375.

41See BGE 133 IV 9

42According to Article 129, this crime can mandate a custodial sentence not exceeding five years or a monetary penalty. In cases of multiple endangerment or when committed in combination with other offences, this maximum sentence can be elevated by 150 %, i.e. it can be up to 7.5 years (see Article 49).

43BGE 138 IV 13.