Facts
On the evening of December 13, 1994, D. carried out the plan he had been harboring for several months due to family difficulties, to start a fire in the marital apartment on the ground floor of a two-family house in N. X., who was in her apartment on the first floor at the time of the fire outbreak, was able to leave the house. The Jury Court of the Canton of Zurich found D. guilty of (qualified) arson within the meaning of Art. 221 para. 1 and 2 of the Swiss Criminal Code (StGB) on March 22, 1996.
D. lodges a federal nullity appeal and requests that the verdict of the Jury Court be set aside and the case be remanded to the lower court for a new judgment on simple arson within the meaning of Art. 221 para. 1 StGB.
Considerations
The qualified offense under Art. 221 para. 2 StGB requires that the life and limb of persons were actually concretely endangered; a merely abstract danger is not sufficient. It is also required that the perpetrator knows about this concrete danger and also intends it in the sense of direct intent.
If, for example, no one was…