Facts
On 5 September 2008, the appellant and three young men (A., B. and C.) initially engaged in a verbal dispute involving mutual insults. The appellant had previously pointed out to A. that he had parked his vehicle without authorisation in a visitor parking space. During the heated discussion, the appellant summoned the caretaker H., who was able to observe the subsequent events.
After B. insulted him, the appellant struck B. with a punch to the face. The three young men then pushed him to the ground and beat him with their fists and feet. The altercation was stopped by the intervention of the caretaker H., an uninvolved colleague of the young men, and the appellant’s wife. The appellant suffered injuries requiring several days of hospitalisation and two weeks of inability to work, but no permanent damage.
The lower court classified the incident as a brawl (Art. 133 SCC) and confirmed both the objective and subjective elements of the offence. The appellant had triggered the escalation of the dispute by throwing the punch and thus actively participated in the brawl. His subsequent passive behaviour was irrelevant, as even a single blow constituted participation. Moreover, he had at least reckoned with the possibility of others joining in the physical confrontation and accepted that risk.
Considerations
1. Objective elements of the offence of brawl (Art. 133 SCC)
The lower court and the Federal Supreme Court confirmed that a brawl requires a mutual physical confrontation involving at least three persons resulting in death or bodily harm. A dispute between two persons becomes a brawl if a third person intervenes physically. The Federal Supreme Court clarified that a person who triggers the brawl is also considered a participant, provided the act is to be regarded as a single offence. This is the case where the sequence of events – verbal dispute, punch, intervention by others – forms a coherent act. It is irrelevant whether the offender subsequently behaves passively or merely defends himself, as even a single blow constitutes active participation.
2. Subjective elements of the offence: recklessness
The subjective elements require intent, though recklessness suffices. The offender must consider the possibility of the result occurring and accept it. The Federal Supreme Court held that intent need only relate to the objective elements of the offence of brawl, not to the consequence of death or bodily harm, as this is an objective condition of criminal liability. The appellant argued that he had not expected others to join in, as A. and C. had been engaged in conversation several metres away at the time of the punch. The Federal Supreme Court rejected this argument, as the spatial, temporal and factual proximity of the events constituted a single act. The appellant had to anticipate that the other young men would intervene in the dispute, particularly given the heated verbal confrontation he had previously had with the group.
3. Distinction from lawful self-defence
The Federal Supreme Court emphasised that only those who behave completely…