Facts
On 12 March 1993, at around 2:00, B. tagged the facade of a public toilet facility at Römerhof in Zurich with a motif of grey stones. The building already had a painting at this location, which had been applied earlier by unknown individuals.
The single judge in criminal matters of the Zurich district court convicted B. on 24 November 1993 of damage to property within the meaning of Article 145, paragraph 1, of the Swiss Criminal Code, to one month's imprisonment with a suspended sentence of three years, as well as a fine of 1,000 Swiss francs. The IIe Chamber of the Higher Court of the Canton of Zurich acquitted him on 15 March 1994.
The Public Prosecutor's Office of the Canton of Zurich filed a nullity appeal and requested the annulment of the Higher Court's judgment due to the violation of Article 145, paragraph 1, of the Swiss Criminal Code, and the referral of the case to the lower authority for conviction and punishment.
Considerations
The Federal Court considered that the offense of damage to property within the meaning of Article 145 of the Swiss Criminal Code aims to protect the owner against any damage to their property. According to case law, painting or tagging a wall in principle fulfills the elements of the offense.
The question arises as to what happens when existing paint is covered by new paint. It is likely that, in such a case, damage to property is also committed if the first paint was applied on the order of the owner. Even in such a case, the owner has a right to protection against any unauthorized damage to their property, which is precisely what their property is supposed to do to the observer.
However, in the present case, the first paint was…