Facts
Parties and procedural history: The complainant ([A.] ) was convicted by the Zurich District Court by judgment of 24 September 2021 of participating in an unauthorised demonstration on Walcheplatz in Zurich on 25 January 2021 and sentenced to a fine of CHF 125.--. The Higher Court of the Canton of Zurich upheld this judgment on the merits and penalty on 15 December 2022. The complainant filed an appeal in criminal matters on 13 February 2023 (supplemented on 25 February 2023) against the higher court judgment, seeking acquittal and reimbursement of her procedural costs. The Office of the Attorney General of the Canton of Zurich did not submit a statement.
Facts of the case: The complainant participated in a demonstration against the newly introduced mandatory mask-wearing requirement in primary schools, which had been advertised on social media. The demonstration took place without official authorisation, despite involving more than ten participants. The Zurich District Court found that the complainant knew or at least considered it possible that the demonstration was unauthorised and nevertheless took part in it. The lower courts considered this to constitute punishable participation in an unauthorised demonstration under municipal law (Art. 26 lit. c and Art. 21 para. 1 VBöG/ZH in conjunction with Art. 26 APV/ZH).
Legal basis: At the time of the offence, § 7 of the Ordinance on Measures to Combat the Covid-19 Epidemic (V Covid-19/ZH) applied in the Canton of Zurich, which prohibited political demonstrations with more than ten persons in public spaces. The complainant was also acquitted of the charge of violating this ordinance, as this count was not contested.
Considerations
1. Admissibility of the appeal The Federal Supreme Court examines the appeal for formal and substantive admissibility. The complainant did not fully meet the requirements for reasoned submissions under Art. 42 FSCA, in particular where she raised blanket challenges to fundamental rights or referred to other legal submissions. Moreover, no ruling was made on objections relating to facts not addressed in the contested judgment (e.g. the constitutionality of the mandatory mask-wearing requirement or the alleged disproportionateness of the ten-person rule). The Federal Supreme Court examined the cantonal files and, in other respects, partially admitted the appeal.
2. Assessment of intent The complainant denied knowing that the demonstration was unauthorised. The Federal Supreme Court confirmed the lower courts' assessment that the complainant acted with conditional intent. Under Art. 12 para. 2 SCC, a person acts intentionally if they consider the realisation of the offence to be possible and accept that outcome. The lower courts were entitled to infer from the circumstances (participation in a demonstration with around 70 persons, public invitation via social media, knowledge of the epidemiological measures) that the complainant considered it possible that the demonstration was unauthorised and accepted that risk. This assessment is not arbitrary and was reviewed by the Federal Supreme Court only for arbitrariness (Art. 97 para. 1 FSCA).
3. Interference with fundamental rights and proportionality The complainant alleged a violation of her freedom of expression and assembly (Art. 16 and 22 Cst.). The Federal Supreme Court confirmed that these freedoms are not absolute and may be restricted by statutory provisions, provided that they are based on an adequate legal basis, serve a public interest and are proportionate. The requirement for authorisation of political demonstrations in public spaces is compatible with the freedom of assembly, as it serves to protect public order and the rights of others. The lower courts…