Judgment of the District Governor Büttiker against Achermann for operating a business without a permit

Facts

Anton Achermann operated a restaurant called Hippotel on the Müswanger-Allmend in the municipality of Hämikon. He received a temporally and geographically limited business permit from the Department of Economics of the Canton of Lucerne. However, Achermann also served drinks and food to visitors of his center on the Lindenberg outside the approved opening hours (weekends and holidays), but did not charge for it. Instead, donation boxes for voluntary contributions in favor of the stray cats cared for by Achermann were set up.

The Lucerne authorities saw this as a circumvention of the temporal restriction of the business permit. On September 18, 1978, the District Governor of Hochdorf, Hermann Büttiker, found Achermann guilty of operating a business without a permit and operating in unapproved premises, and fined him 800 Swiss francs. The reasoning for his decision included the sentence: "Finally, it cannot be overlooked that the accused (Achermann) acted out of pure greed for profit."

The District Court of Hochdorf denied greed for profit and reduced the fine to 100 Swiss francs. Achermann's appeal for cassation was rejected by the Lucerne High Court. The Federal Court also dismissed the constitutional appeal filed against it.

Achermann then filed a defamation lawsuit against District Governor Büttiker because of the quoted sentence. On May 30, 1979, the District Court of Hochdorf acquitted Büttiker of guilt and punishment. The Lucerne High Court confirmed this decision on January 14, 1980. Achermann is now filing a nullity appeal against the judgment of the High Court.

Considerations

The Federal Court concluded that Büttiker's incriminating statement that Achermann had "acted out of pure greed for profit" was objectively defamatory, as "greed for profit" denotes an excessive, grossly egotistical pursuit of gain that exceeds the usual limits. However, the statement was justified by the official duty under Art. 32 of the Swiss Criminal Code (StGB).

Courts and administrative authorities are obliged to provide reasons for their decisions. In doing so, they often have to mention defamatory facts or give summary value judgments. Insofar as such statements are directly related to the subject of the decision and serve…