Facts

Parties and instances:

The public prosecutor’s office of the Canton of Nidwalden found the complainant X. guilty of negligent homicide by summary punishment order of 17 April 2013 and sentenced him to a suspended fine of 180 daily rates of CHF 135. X. filed an objection against the summary punishment order. The Cantonal Court of Nidwalden acquitted X. of the charge of negligent homicide on 27 September 2013. Following an appeal by the public prosecutor’s office, the Higher Court of the Canton of Nidwalden found X. guilty of negligent homicide on 9 April 2014 and again sentenced him to a suspended fine of 180 daily rates of CHF 135. X. filed a criminal appeal with the Federal Supreme Court.

Facts of the case:

The A. AG, as the construction client, carried out the construction of a cable car from May 2011 to June 2012. In the winter of 2011/2012, the cooperative corporation B. (hereinafter: B.) carried out, inter alia, snow-clearing work on Mount Stanserhorn for the construction client. The complainant X. worked as a safety officer for the A. AG and was responsible for the continuous assessment of the avalanche situation in the area of the forest road Bluematt. On 20 February 2012, he consulted mountain guide C. to discuss the advantages and disadvantages of an avalanche blast. C. advised him to close the access road to Bluematt and to carry out an avalanche blast only at the end of the week. On 22 February 2012, C. recommended closing the road. On the evening of 23 February 2012, X. sent an email to several recipients, but not to D., the operations forester and manager of B., in which he pointed out the significantly increased avalanche danger and ordered the closure of the road from the Chäscherzug upwards to Bluematt. No further measures were taken to signal the danger on site, such as a marked road closure. On 24 February 2012, D. and two colleagues wanted to clear the forest road, which had been covered by an avalanche. At around 10:15 a.m., a gliding snow avalanche released, which caught and buried F. F. died shortly afterwards in hospital. X. is accused of not having taken the necessary preventive measures as the person responsible for avalanche safety in the affected area to prevent the avalanche accident.

Considerations

Legal classification of the guarantor position:

The Federal Supreme Court examines whether the complainant X. had a guarantor position towards the employees of B. that would have obliged him to prevent the fatal avalanche accident. According to Art. 117 SCC, negligent homicide is punishable if the offender does not consider the consequence of his conduct due to culpable carelessness or does not take it into account. A negligent result offence may also be committed by culpable omission (Art. 11 SCC) if there is a legal duty to perform the omitted act (guarantor position). The guarantor position may arise from statute, contract, voluntarily assumed community of danger or from the creation of a danger (Art. 11 para. 2 lit. a–d SCC).

The Federal Supreme Court distinguishes between protective and supervisory duties. Protective duties protect a specific legal interest against all dangers threatening it, while supervisory duties involve the monitoring of specific sources of danger for the protection of an indefinite number of legal interests. In the present case, the issue is a supervisory duty to secure a source of danger (avalanche danger) for the protection of an indefinite number of legal interests.

Factual assumption of the guarantor position:

A guarantor position under contract does not arise merely from the agreement itself, but only through the factual assumption of the position. The complainant was listed in the emergency concept of 1 December 2011 as the person responsible for avalanche safety in the Kälti/Bluematt area. The emergency concept was sent to the companies involved in the cable car construction, with some companies being required to provide written confirmation of knowledge and instruction of their employees. No such confirmation from B. is available. Nevertheless, the responsible persons of B., in particular D. and G., were in possession of the emergency concept. The lower court states that B. was involved in the construction project from the outset and was commissioned for various works. It therefore had a position similar to that of the companies bound by the works contract. These circumstances speak in favour of the existence…