Facts
The appellant [X.] was found guilty by the High Court of the Canton of Bern of disregarding a judicial prohibition. The prohibition was requested by [A. AG] , the owner of the [C.] area in Bern, after [X.] urinated in a bush on the [C.] in Bern at 23.00 hours on 30 May 2009 and did not keep her dog on a leash.
The appellant requested the annulment of the judgment and her acquittal. She argued that the judicial prohibition did not provide a sufficient legal basis for her conviction, as the [C.] park in Bern was freely accessible to the public and the authority over it lay with the municipal community of Bern and not with [A. AG] as the owner of the area.
The High Court of the Canton of Bern had affirmed the legality of the prohibition and found the appellant guilty of disregarding a judicial prohibition. However, the lower court had wrongly left unanswered the question of whether the legality of an approved judicial prohibition can be reviewed in a subsequent criminal proceeding in the specific individual case.
Considerations
The Federal Court had to clarify whether the legality of an approved judicial prohibition can be reviewed in a subsequent criminal proceeding in the specific individual case. The lower court had wrongly left this question unanswered. The Federal Court found that the prohibition does not become final and can be challenged by a defendant in a potential criminal proceeding, so that its legality must be reviewed by the court.
The Federal Court further found that the [C.] park is a public thing in common use. According to the Federal Court's case law, the community must proceed by way of public law if it wants to restrict or abolish the common use of a property. Contrary to the opinion of the lower court, the Federal Court thus expressed itself on the question of whether, in the case of properties in common use, the community can claim criminal law…