Facts

Parties and procedural history:

The complainant Andrew McKim (professional player of HC Davos) suffered severe injuries on 31 October 2000 during an ice hockey match of the Nationalliga A against ZSC Lions as a result of a foul by the respondent Kevin Miller (player of HC Davos), which ended his professional career. Miller checked McKim from behind into his back, causing him to hit his head on the ice. Miller was sent off by the on-field referee and later suspended for eight games by the single judge of the Nationalliga and fined 3,000 Swiss francs. The association’s internal disciplinary proceedings confirmed these sanctions.

On 20 September 2005, the District Court of Zurich convicted Miller of simple intentional bodily harm (Art. 123 para. 1 SCC) and negligent serious bodily harm (Art. 125 para. 2 SCC) and sentenced him to three months’ suspended imprisonment. However, on 23 March 2007, the Higher Court of the Canton of Zurich acquitted Miller in the second instance. McKim appealed against this acquittal to the Federal Supreme Court in criminal matters.

Factual circumstances:

McKim was in a scoring position in the tenth minute of the first period when Miller checked him from behind into his back 0.38 seconds after the shot was taken. The impact caused McKim to hit his head on the ice, resulting in severe injuries. Miller was sent off by the referee for the foul. The association’s internal disciplinary bodies classified the foul as “rough” or “very rough” and confirmed the suspension and fine. The injuries forced McKim to end his professional career.

Considerations

Legal classification of fouls in ice hockey:

The Federal Supreme Court emphasises that in the criminal assessment of fouls in team sports, the applicable rules of play play a central role. The more flagrantly these rules are violated, the less a typical risk of the game can be assumed. Instead, criminal liability of the fouling player comes to the fore. The rules of the International Ice Hockey Federation (IIHF) serve not only to ensure orderly play but also to prevent accidents and protect players. Anyone who intentionally or grossly disregards these rules does not act within the scope of the implied consent to the sport-specific risk of bodily harm.

Eventual intent vs. conscious negligence:

According to consistent case law, eventual intent exists if the perpetrator considers the occurrence of the result possible and accepts it. The assessment depends on the severity of the breach of due care and the perpetrator’s knowledge of the proximity of the risk of injury. In the present case, Miller created a highly risky situation by checking from behind at high speed, in which the consequences of injury were foreseeable for him. The Federal Supreme Court concludes that Miller accepted McKim’s injuries, as he deliberately manoeuvred himself into an uncontrollable situation in which a rule-compliant check was no longer possible. The lower court had failed to recognise this and had acquitted Miller on the grounds that he had hoped for a rule-compliant execution of the check. This reasoning is contradictory, however, as Miller could not foresee his opponent’s position and deliberately placed himself in a situation in which a check from behind was unavoidable.

Negligent serious bodily harm:

The Higher Court had acquitted Miller of negligent serious bodily harm on the grounds that a conviction for intentional bodily harm was a prerequisite for…