Facts
On October 11, 2009, X., born in 1964, walked naked in the Nieschberg leisure area in Herisau/AR, between 3:40 pm and 4:00 pm, passing near a campfire occupied by a family with young children and near a Christian rehabilitation center for drug addicts. A passerby called him out and filed a complaint.
The investigative office of Appenzell A.Rh. convicted X. on November 23, 2009, for indecent behavior under Art. 19 of the Appenzell A.Rh. cantonal penal code to a fine of 100 francs or a substitute sentence of one day in case of non-payment of the fine.
The president of the Appenzell A.Rh. cantonal court acquitted X. on May 27, 2010.
The higher court of Appenzell A.Rh. convicted X. on January 17, 2011, on appeal by the public prosecutor, for indecent behavior under Art. 19 para. 2 of the Appenzell A.Rh. cantonal penal code to a fine of 100 francs.
Considerations
The Federal Court examined whether the cantons are competent to legislate on police contraventions, particularly with regard to offenses against morals and public decency in public areas. It considered that the cantons are legitimized by Art. 335 para. 1 SCC to suppress « naturist hiking » in public areas.
The Federal Court also examined whether a norm that threatens to sanction anyone who commits « a gross offense against morals and public decency in a public area » presents a sufficient degree of precision. It considered that the norm in question is precise enough to allow the individual to comply with the law.
The Federal…