Facts
Arnold Ettlin was questioned as a witness in a civil law dispute as to whether he was aware of any incidents showing that Marie Röthlin-Niederberger was an incompatible woman and could not get along with the neighbors. Ettlin replied that in his opinion, Mrs. Röthlin consumed more alcohol than necessary and was not mentally normal. Röthlin-Niederberger saw this as defamation of character and damage to her credit and sued Ettlin for punishment.
The Cantonal Court and the High Court of Obwalden dismissed the lawsuit, as Ettlin had been obliged as a witness to answer the questions to the best of his knowledge and belief. Röthlin-Niederberger then filed a nullity appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court states that Art. 307 of the Swiss Criminal Code, which provides for the punishment of knowingly false witness statements, does not exclude the application of Art. 160 and 174 of the Swiss Criminal Code for the protection of honor and credit. However, in the present case, neither Art. 160 nor Art. 174 of the Swiss Criminal Code apply, as the lower court has conclusively established that Röthlin-Niederberger has not proven the untruthfulness of Ettlin's statements.
According to Art. 32 of the Swiss Criminal Code, an act that the law requires or permits is not punishable. This also applies to defamation. Whoever, in fulfillment of a legal duty and in good faith in the truth of his statement, burdens someone, is therefore not punishable. As a witness in the court…