Facts

Parties and procedural history:

The appellant ([A.] ) was charged by the Regional Public Prosecutor’s Office of Bernese Jura-Lake Biel with a summary penalty order dated 24 June 2021 with having constructed two parallel paths, carried out material removals and excavation work in the watercourse area on a plot in Schüpfen without the required permits. The allegations included, in particular, an offence against the Forest Act (ForA), the cantonal Building Act (BauG/BE) and the cantonal Water Construction Act (WCA).

The Regional Court of Bernese Jura-Lake Biel acquitted the appellant on 22 June 2023 of the allegations of offences against the ForA and the BauG/BE, but convicted him of an offence against the WCA to a fine of CHF 50.--. The Public Prosecutor’s Office appealed against this judgment.

The Superior Court of the Canton of Bern convicted the appellant on 13 March 2025 of all three allegations to a suspended fine of 15 daily rates at CHF 60.-- and a petty offence fine of CHF 1,700.--. The appellant filed an appeal against this judgment with the Federal Supreme Court.

Core allegations and factual findings of the lower court:

The lower court (Superior Court of Bern) found that the appellant had not constructed new paths, but had significantly expanded and altered existing paths by removing material. Specifically, it was found that:

  • the path within the forest had been clearly altered by removing material, creating a drainage ditch, steep embankments and exposing roots;
  • in the south-western area of the plot, topsoil was removed and material was removed from a path along the northern boundary;
  • these works had been carried out without the required permits (clearing permit under the ForA and building permit under the BauG/BE).

The lower court relied on a restoration order issued by the Municipality of Schüpfen on 16 October 2020, against which the appellant did not file an appeal. The order qualified the paths as permit-required and partially as not eligible for a permit.

Procedural objections raised by the appellant:

The appellant alleged a violation of the indictment principle (Art. 9, 325, 350 CrimPC), the right to a fair hearing (Art. 29 para. 2 Cst., Art. 6 ECHR) and an incorrect application of the substantive criminal provisions (Art. 42 ForA, Art. 50 BauG/BE). He argued that the lower court had exceeded the indictment facts and raised new allegations that had not allowed him adequate defence. Moreover, the presumption of innocence had been violated because the lower court had relied on the restoration order, even though it was based on a different set of facts.

Considerations

1. Examination of the indictment principle and defence rights:

The Federal Supreme Court first examined whether the lower court had violated the indictment principle (Art. 9, 325, 350 CrimPC). The appellant argued that the indictment was imprecise in terms of time, as it only referred to the works carried out on 2 June 2020 without specifying the exact times or locations. He also complained that the lower court had altered the facts in substance by accusing him not of constructing new paths, but of expanding existing ones. This had impaired his ability to mount a defence.

The Federal Supreme Court stated that the indictment principle must fulfil the boundary-setting and information functions. The indictment must describe the acts with sufficient precision to enable the accused to mount an effective defence. However, the court was not bound by the exact wording of the indictment, but could clarify the facts within the framework of the immutability principle, provided that the changes were not decisive for the legal qualification and the accused had been given the opportunity to comment.

In the present case, the Federal Supreme Court found that the lower court had indeed deviated from the indictment facts, but that this deviation was in maiore minus and that the appellant had been given sufficient opportunity to defend himself. The allegations had been sufficiently specified to enable effective defence. Moreover, the appellant had raised the time-related objection for the first time before the Federal Supreme Court, without having asserted it in the cantonal proceedings. The cantonal instance had therefore not been exhausted, and the Federal Supreme Court did not entertain this objection (Art. 80 para. 1 FSCA, principle of material exhaustion).

2. Examination of the substantive criminal provisions (Art. 42 ForA, Art. 50 BauG/BE)

The appellant argued that the lower court had incorrectly applied the objective elements of the Art. 42 para. 1 lit. a ForA (unauthorized clearing) and Art. 50 para. 1 BauG/BE (construction without a permit). He claimed that the lower court had wrongly relied on the municipality’s restoration order, as it was based on a different set of facts. Moreover, it had not been proven that his works constituted misappropriation of forest soil or required a building permit.

The Federal Supreme Court stated that clearing within the meaning of the ForA includes any permanent or temporary misappropriation of forest soil. Non-forestry construction projects are regularly to be qualified as misappropriation unless they qualify as minor structures or forestry measures. The lower court had correctly found…