Facts
This case dealt with the question of whether the air traffic at Lommis Airfield should be considered public transport within the meaning of Art. 237 para. 1 of the Swiss Criminal Code (StGB). The Public Prosecutor's Office of the Canton of Thurgau brought charges against X. and associates for violation of public transport.
The High Court concluded that the air traffic at Lommis Airfield does not constitute public transport, as the circle of users is determinable and the airfield is not subject to a licensing requirement. However, the appellant, the Public Prosecutor's Office, maintained that it constitutes public transport within the meaning of Art. 237 StGB.
Considerations
The Federal Supreme Court stated that land transport is considered public within the meaning of Art. 237 para. 1 StGB if it takes place on roads, road junctions, and squares that serve not only private use but also general traffic. This definition generally also applies to public air transport.
However, a distinction must be made in the area of low-altitude airspace used for the take-off and landing of aircraft between airports and airfields. Airfields serving public transport require a concession and are subject to general licensing requirements. The approach and departure to and from such airfields is therefore considered public transport under Art. 237 StGB.
The situation is different for airfields that do not serve public transport and are only subject to a permit requirement. In these cases, the person entitled to dispose of the airfield generally determines who is allowed to use it for landing and take-off. In such cases, it must be examined on the basis of the actual…