Facts
In the early morning hours of May 13, 1979 (Mother's Day), [S.] and [L.], both of whom were intoxicated, attempted to break into an architectural office in Lucerne. [L.] wanted to gain access to the building via a fire escape and across the flat roof, but he failed to reach the window sill and fell about 6 meters deep into the light well. [S.] had unsuccessfully tried to free his accomplice who was dangling from the parapet. [L.] suffered a spiral fracture of the left lower leg and a fracture of the third metatarsal bone of the left foot in the fall. [S.] left the scene and failed to provide assistance.
The High Court of the Canton of Zurich acquitted [S.] of the charge of abandonment within the meaning of Art. 127 para. 1 cl. 2 of the Swiss Criminal Code, but convicted him of various other offenses.
The Public Prosecutor's Office of the Canton of Zurich filed a nullity appeal with the request to find [S.] guilty of abandonment as well.
Considerations
The Federal Supreme Court held that the association of [S.] and [L.] to commit a burglary did not establish a community of danger with mutual duties of care. There is no indication that the association was made with a view to possible health risks and in reliance on mutual assistance.
Furthermore, a duty of care within the meaning of Art. 127 of the Swiss Criminal Code does not arise merely because a person…