Facts
The case concerns the question of whether informants who are questioned by the police or a judge can also invoke the justification ground pursuant to Art. 14 of the Swiss Criminal Code (StGB) if they make defamatory statements in their testimony. The Federal Supreme Court had not yet had to deal with this issue.
The lower court has answered the question in the affirmative, and the Federal Supreme Court agrees with this view. While informants, unlike witnesses, are not subject to a statutory duty to testify, the law nevertheless legally desires their willingness to provide information or testimony to the criminal prosecution authorities.
Therefore, it would not be appropriate to expose the willing informant to an increased risk of criminal liability by excluding Art. 14 StGB, and thus essentially recommend the refusal to provide information as the advisable course of action. From the perspective of the legal permission, it is therefore justified to also grant the informant the protection of Art. 14 StGB in the case of defamatory statements made during an interrogation.
Considerations
The Federal Supreme Court states that under Art. 14 StGB, a person acts lawfully if the law requires or permits it. Judges, officials, parties to proceedings, and witnesses can invoke this justification ground in certain cases if they make defamatory statements in the performance of their duties or obligations.
The Federal Supreme Court sees no reason why this protection should not also apply to informants who are questioned by the police or a judge. While they do not have a statutory duty to testify, their willingness to provide information is legally desired and in…