Facts

Parties: Appellant [A.] against the Public Prosecutor's Office of the Canton of Fribourg.

Facts:

  • [A.] twice refused in writing an official inspection by the Office for Food Safety and Veterinary Affairs of the Canton of Fribourg (LSVW).
  • On July 7, 2021, [A.] again refused to allow an inspection, whereupon the employees of the LSVW left without having accomplished their task.
  • [A.] was convicted by penal order for obstruction of official business (Art. 286 SCC), whereupon he filed an appeal.
  • The court of the Sense district acquitted [A.] of the charge of obstruction of official business but convicted him of violating the Food Act (Art. 64 para. 1 lit. f FoodA).
  • The Criminal Appeals Court of the Canton of Fribourg confirmed the acquittal and the conviction.
  • [A.] filed an appeal in criminal matters, requesting the annulment of the judgment and the dismissal of the proceedings.

Considerations

1. Principle of "ne bis in idem" (Art. 11 para. 1 CrimPC) The appellant complains of a violation of the principle of "ne bis in idem". The acquittal for obstruction of official business is said to have become final and binding on the previous court. The Federal Supreme Court finds that the acquittal and the conviction relate to the same facts but are based on different legal qualifications. A partial dismissal or partial acquittal is only possible if several life events can be assessed separately. However, in this case, there is only a different legal assessment of the same facts.

2. Preclusive effect of the acquittal The Federal Supreme Court examines whether the preclusive effect of the acquittal stands in the way of the conviction. According to the case law of the ECtHR, the finality of a decision is not decisive if no new criminal proceedings have been conducted. The appeal proceedings are to be qualified as a further procedural stage in the same criminal proceedings. The conviction for violating the Food Act is therefore not in contradiction to the acquittal for obstruction of official business.

3. Competence of the LSVW The appellant challenges the…