Facts
Parties and procedural history:
The complainant A., a police officer with the U. city police, was indicted by the public prosecutor’s office of the Canton of Graubünden for abuse of authority under Art. 312 SCC. The accusation related to the use of pepper spray during a police check at the V. nightclub in U. on 6 July 2013 at 02:30. Police officer C. was also involved in the check. Pepper spray was used against the manager B. from a distance of approximately 50 cm, even though at that time there was no immediate threat or attack from B. B. suffered injuries including bruising, abrasions, a shoulder sprain, mild restraint paralysis, back pain and a slight chemical burn to the eyes.
The indictment dated 24 January 2018 alleged that A. had exercised disproportionate force by using the pepper spray and thereby caused disadvantages to B., without however explicitly specifying the subjective element of the offence (intent to cause disadvantage).
The Regional Court of Plessur acquitted A. of the charges of abuse of authority and simple assault on 17 May 2018. The Court of Appeal of the Canton of Graubünden overturned this judgment and convicted A. of abuse of authority on 9 June 2021 to a fine of 20 daily rates of CHF 150 each and a fine of CHF 450, with the fine suspended on probation.
A. filed an appeal with the Federal Supreme Court on 30 January 2023, alleging in particular a violation of the indictment principle, as the indictment had not sufficiently specified the required subjective element of the offence (intent to cause disadvantage). The public prosecutor’s office and the Court of Appeal did not submit a response.
Considerations
1. Requirements for the indictment and the indictment principle:
The Federal Supreme Court first examined whether the indictment met the requirements of the indictment principle (Art. 9 and 325 CrimPC, Art. 29 para. 2 and Art. 32 para. 2 Cst., Art. 6 para. 1 and para. 3 lit. a and b ECHR). According to this principle, the indictment must sufficiently specify the charges in objective and subjective terms to safeguard the defence rights of the accused and guarantee the right to be heard. Although the lower court had noted that the indictment only briefly addressed the subjective element of the offence, it considered that the complainant could recognise the charges made against him in subjective terms. The Federal Supreme Court confirmed that the indictment sufficiently described the use of pepper spray as disproportionate force and the infliction of disadvantages on B. The lack of explicit mention of the intent to cause disadvantage in the indictment was deemed harmless, as the lower court had identified the disadvantage in the act of force itself (the use of pepper spray). No serious impairment of the defence rights was apparent.
2. Offence of abuse of authority (Art. 312 SCC):
The offence of abuse of authority requires that an official abuses their official authority to obtain an unlawful advantage for themselves or a third party or to cause disadvantage to another. The subjective element of the offence requires intent (at least conditional intent) and a specific intent either to obtain an unlawful advantage or to cause a disadvantage. Case law has clarified that the disadvantage may also lie in the act of force itself, even if the perpetrator pursues legitimate objectives. The decisive factor is that the official uses excessive means and thereby knowingly causes or at least accepts a disadvantage.
3. Subjective element of the offence and intent to cause disadvantage:
The Federal Supreme Court confirmed that the intent to cause disadvantage was sufficiently established in the present case. The complainant knew that using pepper spray at close range without justification constituted disproportionate force and caused disadvantages to B. The lower court held that the disadvantage already lay in the act of force itself (the use of pepper spray), which was sufficient to fulfil the subjective element of the…