Facts
On 7 May 2016, a football match between FC B. and SC C. took place on the football field in D., in E. At the 15th minute of play, player X. tackled player A. at the level of the right ankle, causing a bi-malleolar fracture of the latter’s right ankle. The referee sanctioned X. with a yellow card for “hard play”. X. also received a second yellow card at the 63rd minute for the same reason, resulting in his expulsion from the field.
By judgment of 30 January 2018, the Police Judge of the Sarine district convicted X. of simple negligent bodily harm to 40 hours of community service, suspended for two years, and admitted the principle of X.’s civil liability while taking note of A.’s civil reservations. By judgment of 19 November 2018, the Criminal Appeals Court of the Fribourg Cantonal Tribunal dismissed X.’s appeal as well as the joined appeal filed by the Public Prosecutor’s Office and confirmed the first-instance judgment.
X. filed an appeal in criminal matters before the Federal Supreme Court against the judgment of 19 November 2018, primarily seeking his acquittal and the rejection of the principle of his civil liability. In the alternative, he requested the quashing of the judgment and the referral of the case back to the lower authority for a new decision.
Considerations
The Federal Supreme Court first examined X.’s complaints regarding the assessment of the evidence and the violation of the presumption of innocence. It recalled that, as an appellate authority, it is bound by the factual findings of the challenged decision, unless those findings were established in violation of the law or in a manifestly incorrect or arbitrary manner. The presumption of innocence, guaranteed by Art. 10 CrimPC and Art. 32(1) SCC, implies that any doubt must benefit the accused and that the judge must not be convinced of a fact unfavourable to the accused if serious and irreconcilable doubts remain. The Federal Supreme Court considered that the cantonal court had not acted arbitrarily in finding that the referee had qualified the tackle as “dangerous” and sanctioned X. with two yellow cards for “hard play”. The statements of X. and the referee were deemed sufficient to establish the facts, without the presumption of innocence being violated.
On the merits, the Federal Supreme Court recalled the conditions for negligence under Art. 125 SCC. Two elements must be met: the violation of the duty of care and the fault of the perpetrator. The duty of care is determined based on the circumstances and the perpetrator’s abilities, as well as the applicable rules of play. In sport, the rules of play are designed, among other things, to protect players against bodily harm. A serious violation of these rules precludes the perpetrator from invoking the principle of “volenti non fit iniuria”, according to which the tacit consent of the injured party covers the risks inherent in the sporting activity.
The Federal Supreme Court examined the qualification of the disputed tackle in light of the FIFA rules of play. A tackle deemed “dangerous” or “reckless” by the referee, sanctioned by a yellow card, may constitute a sufficiently serious violation of the duty of care to engage the criminal liability of the perpetrator. In the…