Facts
On 22 March 1997 at approximately 21:15, the accused Z. was encountered by police officers S. and U. in Bettlach while riding a motorcycle without a helmet. As Z. was unable to identify himself, the two officers took him to the Grenchen district station and placed him in a cell. Later, Z. attempted to draw attention to himself by repeatedly ringing the bell. Thereupon, the complainant S. opened the cell door, grabbed Z. by the shirt, pushed him against the cell wall and struck him with a fist to the left temple, insulting him as a "filthy dog".
After completing the police investigations, the officers accompanied Z. home. In the entrance area of the district station, Z. threatened the complainant S. with consequences. Thereupon, S. turned to Z. and struck him with a fist to the face, causing Z. to fall to the ground and injure his chin on a metal chair edge. While Z. was on the ground, S. struck him several times on the back of the head, punched him in the liver and kidney area and kicked him in the thigh. In addition, S. threatened to "finish him off".
The Higher Court of the Canton of Solothurn convicted the complainant S. on 10 January 2001 of abuse of authority (Art. 312 SCC), simple assault, multiple insults and threats and sentenced him to a suspended prison term of three months. The court also declared him ineligible to be a member of an authority or an official for two years, with the sentence to be served conditionally during a probationary period of two years. S. filed a federal nullity appeal and requested the annulment of the judgment and the referral of the matter back to the lower court.
Considerations
The Federal Court first examined the requirements for abuse of authority under Art. 312 SCC. Under this provision, an official or member of an authority commits an offence if they abuse their official power to obtain an unlawful advantage for themselves or another person or to cause harm to another person. The offence covers only acts performed by the offender in their official capacity, i.e. by exploiting their sovereign power. This applies in particular to unlawful use of force during official duties, even if no official purpose is pursued.
The lower court found that the objective elements of abuse of authority were fulfilled, as the complainant had mistreated Z. during an official identity check. Even if the complainant had not pursued an official purpose, he had exploited his power as a police officer to use force. Z. was in police custody and defenceless against the complainant. The use of force thus appeared as an exercise of the power inherent in the official’s position. The subjective elements were also fulfilled, as the complainant acted intentionally.
The Federal Court confirmed this interpretation and specified the case law on Art. 312 SCC. Under this provision, it is irrelevant whether the official pursued an official purpose. What is decisive is whether the…