Facts
On November 8, 2003, a traffic accident involving three passenger cars occurred on the Aarauerstrasse between Muri/AG and Wohlen/AG. The appellant X. was driving his Volkswagen Vento passenger car in the right lane towards Wohlen. F. was in the process of overtaking X. in his Mercedes 280 E passenger car and was therefore driving in the left lane towards Wohlen. Approaching from the opposite direction was G. in a Toyota Starlet passenger car. A head-on collision occurred between the vehicles of F. and G. The two drivers died at the scene of the accident or the same day in the hospital. The five passengers in F.'s car and the two passengers in G.'s car were injured. X. remained uninjured.
X. did not possess a driver's license, as his learner's permit for category B had been revoked indefinitely.
Considerations
The Federal Supreme Court concluded that the conviction of the appellant X. for intentional homicide and intentional simple bodily harm was not justified. The lower court had not taken into account all the circumstances that are essential for the distinction between dolus eventualis and conscious negligence.
Dolus eventualis exists if the perpetrator considers the occurrence of the result to be possible but nevertheless acts because he accepts the result in the event of its occurrence. However, the circumstances cited by the lower court do not allow the conclusion of dolus eventualis on the part of the appellant. Rather, some…