Facts
The case concerns a complainant who, as the managing director of E. GmbH, offers gold washing courses in the Napf region. On May 18, 2011, he entered the property of respondent 2, in disregard of a judicial trespass prohibition, to proceed to the course location at C. via a management path. In doing so, he removed two fence insulators from the wooden post and cut the fence wire with a hammer to provide access to the property.
The public prosecutor convicted the complainant of minor property damage and violation of the general prohibition. The District Court of Willisau acquitted him of the charge of violation of the general prohibition for the upper part of the path, but convicted him of minor property damage and violation of the prohibition for the lower part. The Cantonal Court of Lucerne confirmed this judgment.
The Federal Court upheld the complainant's appeal against this judgment and remanded the case for re-assessment to the lower court. In the re-assessment, the Cantonal Court of Lucerne found the complainant guilty only of minor property damage and acquitted him of the charge of violation of the general prohibition.
Considerations
The Federal Court confirms the judgment of the lower court. It states that the complainant cannot invoke the right of self-help under Art. 52 para. 3 CO, as he did not challenge the judicial trespass prohibition in a timely manner through civil proceedings. His actions violate the principle of proportionality, as the public interest in preventing self-justice and the…