No negligent co-perpetration in the absence of a demonstrable joint decision to commit the act and an individual breach of the duty of care

Facts

The complainants A.A. and B.A. were indicted by the Office of the Attorney General of the Canton of Aargau for negligently causing a conflagration (Art. 222 para. 1 SCC) and violating the Fire Protection Act. They were accused of having caused a fire on the balcony of a multi-family house at 00:05 on 1 January 2013 by igniting 'Klasek' brand fireworks rockets, resulting in property damage of CHF 868,951.-. No persons were injured.

The complainants had jointly decided to ignite fireworks rockets, and each of them fired two rockets. One of the rockets caused the fire, but it could not be determined which of the two had ignited the rocket that triggered the blaze. The court of first instance (District Court of Laufenburg) acquitted both complainants as no joint decision to commit the negligent act could be proven. The Office of the Attorney General of the Canton of Aargau appealed against this judgment.

The Higher Court of the Canton of Aargau convicted the complainants on 19 January 2016 of negligently causing a conflagration to fines of 80 daily rates of CHF 200 each and fines of CHF 800, with the fines being conditionally suspended. The complainants then filed criminal appeals with the Federal Supreme Court and sought the annulment of the judgments and their acquittal from guilt and punishment.

Considerations

The Federal Supreme Court examined whether the complainants could be convicted of negligent co-perpetration under Art. 222 para. 1 SCC even though it could not be proven which of the two had ignited the rocket that caused the fire. The lower…