Facts
The Federal Tribunal was seized of an appeal for nullity filed by Mr. Schmid against a judgment of the Cantonal Tribunal of St. Gallen, which had found him guilty of public incitement to the violation of military duties (Art. 276 para. 1 SCC) and sentenced him to one week of suspended imprisonment. Mr. Schmid was the editor-in-chief of the magazine "Roter Gallus" in which a text considered to constitute such an offence had been published.
The Federal Tribunal dismissed the appeal. It considered that the criminal liability of the editor-in-chief under Art. 27 para. 3 no. 1 SCC does not depend on the fault of the author of the incriminated text, as long as the latter could not be identified. This liability of the editor-in-chief is a liability for others, which aims to allow the punishment of the offence, even in the absence of proof of the author's fault.
Considerations
The Federal Tribunal first recalled that the criminal liability of the editor-in-chief under Art. 27 para. 3 no. 1 SCC applies when the author of the disputed publication could not be identified. This liability of the editor-in-chief does not depend on his own fault, nor on that of the author.
The appellant argued that, according to the principle of liability for fault that governs Swiss criminal law, he could only be punished if the author of the text had acted culpably. However, the Federal Tribunal rejected this argument, considering that the criminal liability of the editor-in-chief provided for by the…