Facts
The case concerns the defendant V., who in 1977 visited the Daleu cemetery in Chur on several weekends and stole or rearranged various objects such as grave slabs, wreaths, a gilded cross, a flower bowl, and flowers, without causing any damage. The Chur District Court found V. guilty of theft and other offenses, but acquitted him of the charge of disturbing the peace of the dead (Art. 262 Ziff. 1 Abs. 1 SCC). The public prosecutor's office appealed this acquittal, but it was rejected by the Cantonal Court of Graubünden. The public prosecutor's office then filed a federal appeal with the request to overturn the judgment and refer the case back to the lower court for conviction of V. for disturbing the peace of the dead.
Considerations
The Federal Court examined the appeal and came to the conclusion that the characteristics of Art. 262 Ziff. 1 Abs. 1 SCC are not objectively fulfilled. The defendant's actions, such as rearranging grave slabs and stealing objects, do not constitute a gross violation of the sense of piety and therefore do not desecrate the resting place of the dead in a crudely offensive manner.
The Federal Court referred to the case law according to which the act of Art. 262 SCC is described as desecration (profanation) and includes acts of aggression such as destroying and damaging graves, gravestones, and urns, as well as committing insulting mischief in a cemetery. However, the perpetrator must have acted in a crudely offensive manner, which refers to the perpetrator's external behavior and actions, but not to their motives or attitude.
The…