Facts
On the night of June 28 to 29, 1989, [A.], [B.] and [Z.] met at the shore of Lake Neuchâtel. [Z.] fell from a tree at a height of approximately 11.5 meters and lost consciousness. [A.] and [B.] observed his condition but did not provide him with assistance. [Z.] died on July 5, 1989, from his injuries.
The Police Court of the District of Boudry convicted [A.] and [B.] of various offenses but did not apply Article 9 of the Neuchâtel Criminal Code (CPN) regarding the duty to provide assistance. The Public Prosecutor's Office appealed against this judgment, arguing that [A.] and [B.] had negligently violated Article 9 CPN.
The Neuchâtel Court of Cassation dismissed the appeal, finding that such an act was no longer punishable since the entry into force, on January 1, 1990, of the new Article 128 of the Swiss Criminal Code (CP).
The Public Prosecutor's Office filed a nullity appeal with the Federal Tribunal.
Considerations
The Federal Tribunal first examined the admissibility of the nullity appeal. Although the appellant had invoked a violation of Article 335 CP while, in the cantonal proceedings, he had requested the application of Article 9 CPN, the Tribunal considered that the grievance that the cantonal law had been wrongly applied instead of federal law was admissible in a nullity appeal.
On the merits, the Federal Tribunal noted that Article 335 CP reserves the power of the cantons to legislate on police offenses that are not the subject of federal legislation. However, according to case law, if a behavior escapes the provisions of the criminal code or federal criminal…