Facts

Facts and procedural history:

The complainant operated an agricultural business in [U.] (Canton of Appenzell Ausserrhoden). On 1 March 2013, the cantonal veterinary office filed a criminal complaint against him on suspicion of multiple acts of animal cruelty and violations of the Animal Welfare Act (AniWA) and the Animal Diseases Act (EzDA). On 5 March 2014, the public prosecutor’s office brought charges for multiple offences against animal welfare and animal disease legislation committed between August 2012 and May 2013.

On 8 October 2015, the Appenzell Ausserrhoden Cantonal Court convicted the complainant of multiple acts of animal cruelty (Art. 26 para. 1 lit. a AniWA), multiple offences against the Animal Welfare Act (Art. 28 para. 1 lit. a AniWA) and multiple offences against the Animal Diseases Act, imposing an unconditional fine of 210 daily rates of CHF 85 each and a fine of CHF 10,000. On appeal by the complainant, the Appenzell Ausserrhoden Higher Court upheld the first-instance judgment insofar as it had not yet become final on 5 December 2017.

The complainant, in his criminal appeal, alleges violations of formal and substantive rights. He requests the annulment of the judgment and a full acquittal or, in the alternative, a referral back to the lower court for reassessment. The public prosecutor’s office waived its right to comment.

Core allegations by the lower court:

  • Multiple acts of animal cruelty through neglect of sick animals (e.g. sheep with foot rot, calf with pneumonia),
  • Violations of husbandry regulations (e.g. inadequate weather protection for sheep and goats, insufficient bedding, lack of retreat options for horses),
  • Violations of feeding regulations (e.g. mouldy or contaminated feed with foreign bodies),
  • Violations of hoof care obligations,
  • Violations of registration obligations under the Animal Traffic Database (TVD).

Considerations

1. Formal objections: Admissibility of inspection reports and right to be heard

The complainant argued that the unannounced inspections of the farm on 11 February, 6 March and 14 May 2013 had been conducted without a written order and were therefore inadmissible as evidence. The Federal Supreme Court held that inspections of agricultural businesses by cantonal specialist bodies are legally provided for (e.g. Art. 32 AniWA, Art. 210 para. 1 in conjunction with Art. 213 para. 1 AniWO). The law does not require written orders prior to such inspections. Art. 241 CrimPC (searches) is not applicable by analogy. The objection was dismissed as unfounded since procedural rules were violated, but not validity rules or prohibited methods of evidence gathering (Art. 141 para. 3 CrimPC).

The complainant also complained about the subsequent granting of the right to be heard in the administrative proceedings. The Federal Supreme Court clarified that any violation of the right to be heard in the administrative proceedings should have been raised there. Such an objection was no longer admissible in the criminal proceedings.

2. Substantive objections: Factual findings and assessment of evidence

The complainant argued that the lower court had wrongly failed to appoint an expert and had relied on the assessments of the cantonal veterinarian, who had been involved in the administrative proceedings. The Federal Supreme Court confirmed that the criminal judge must establish the facts independently (principle of in dubio pro reo). While the cantonal veterinarian could be heard as an expert witness, he could not act as an expert within the meaning of Art. 182 et seq. CrimPC. The inspection reports of the veterinary office were admissible as evidence insofar as they were limited to observed facts and did not already contain assessments. However, the lower court had used the reports as evidence without critically examining the assessments contained therein. This led to the annulment of the convictions for animal cruelty in the case of the kids (E. 7.3.2) and the lack of dry bedding for the goats (E. 7.6.2), as the evidence was insufficient for these convictions.

In assessing indeterminate legal concepts (e.g. sufficiently dry bedding, Art. 34 para. 1 AniWO), the lower court was not required to appoint an expert. The interpretation of such concepts is a matter for the court (principle of iura novit curia). However, the lower court had drawn partly arbitrary conclusions when assessing the photographic documentation and the inspection reports, particularly with regard to the assessment of the animals’ dirtiness and the quality of the bedding.

3. Individual convictions: Animal cruelty and animal husbandry

The conviction for animal cruelty in the case of the kids was annulled because the lower court had not sufficiently demonstrated that the animals had…