Facts
The appellant was acquitted by the District Court of Horgen on 23 November 2010 on the relevant counts of the indictment. The Municipality of Horgen, as respondent, appealed against this judgment. The Higher Court of the Canton of Zurich convicted the appellant on 13 January 2012 of multiple criminal damage (Art. 144 para. 1 SCC) and multiple disruption of operations serving the public (Art. 239 para. 1 no. 2 SCC).
The appellant had, over a period of just over three years, manipulated a total of 13 hydrants in the Municipality of Horgen, damaging twelve of them. In some cases, water leakage caused consequential damage. Due to the manipulations and damage, the hydrants were not operational until repaired, resulting in gaps in the fire-fighting water supply. The appellant acted out of a desire for revenge against his residential municipality. The Higher Court sentenced him to a suspended custodial sentence of 10 months and ordered him to pay damages to the Municipality of Horgen in the amount of CHF 44,728.75.
The appellant then filed a criminal appeal with the Federal Supreme Court, seeking the quashing of the judgment and his acquittal. In the alternative, he requested that the matter be remitted to the Higher Court for re-examination. He also sought an order for the canton’s court costs to be borne by the court treasury and the award of appropriate compensation for legal costs.
Considerations
The Federal Supreme Court first examined the appellant’s objection that valid criminal complaints had not been filed in several factual complexes. It found that the appellant had not raised these objections in the lower-instance proceedings and was therefore precluded from raising them on appeal. Moreover, the complaints had been filed within the statutory three-month period, so the lower court had correctly found that the complaints were timely. The lower court’s findings of fact were not arbitrary, as they were based on a comprehensible assessment of the evidence. The appellant had not presented any specific indications of arbitrary assessment of evidence, but had confined himself to purely appellate criticism. The lower court had also correctly excluded the involvement of the appellant’s son and had rightly considered the uniformity of the modus operandi as an indication of the appellant’s involvement.
The appellant argued that the lower court had not violated the protected legal interest under Art. 239 para. 1 no. 2 SCC, since the disruption had not reached the required intensity. The Federal Supreme Court held that Art. 239 SCC protects the operation of facilities serving the public and that even a qualitative impairment or endangerment of operations suffices. The manipulation and damage to the hydrants had led to an interruption in the fire-fighting water supply, which constituted a significant impairment. The lower court had correctly found that the hydrants were not operational until repaired, so that there was a concrete risk to the fire-fighting water supply. The fact that no fire had occurred during the interruption was irrelevant, since Art. 239 SCC protects the public interest in the functioning of public services.
The appellant further objected that the lower…