Facts
By penal order of 22 February 2018, the appellant [A.] was charged with having breached his duty of care in handling hazardous substances and medicinal products and in storing and keeping narcotics. Hazardous chemicals had allegedly been left in two dilapidated properties in [U.] , so that unauthorised persons could easily gain access. Furthermore, large quantities of packaged medicinal products had allegedly been stored there freely accessible for several months. In the property at [V.] strasse xxx, nine 100 ml bottles filled with morphine had allegedly stood openly on a shelf that could not be locked.
The Baden District Court acquitted the appellant on 7 November 2018 of the charge of multiple endangerment of health through breach of duties of care in handling medicinal products (Art. 86 para. 1 lit. a in conjunction with Art. 3 ChemO). However, it found him guilty of breaching the duty of care in handling substances or preparations (Art. 50 para. 1 lit. b ChemA in conjunction with Arts. 8 and 21 ChemA) and of the contravention under Art. 22 lit. a and c NarcA, and sentenced him to a fine of CHF 10,000.--. The appellant appealed against this judgment, and the private claimant [B.] and the Public Prosecutor's Office of Baden lodged cross-appeals.
The Cantonal Court of Aargau (Criminal Court, 2nd Chamber) on 18 August 2020 found the appellant guilty of breaching the duty of care under Art. 50 para. 1 lit. b in conjunction with Arts. 8 and 21 ChemA, of the contravention under Art. 87 para. 1 lit. f former TPA, and of the contravention under Art. 22 lit. c NarcA, and sentenced him to a fine of CHF 16,000.--.
By way of a criminal law appeal to the Federal Supreme Court, the appellant sought full acquittal or, alternatively, remittal to the lower court. The Public Prosecutor's Office of the Canton of Aargau and the private claimant [B.] were the respondents.
The lower court found that the substances trifluoroacetic acid, isopropanol, papaverine hydrochloride, methanol and sodium azide were hazardous substances within the meaning of the ChemA. The containers were partly full and partly empty but uncleaned. The fence of the property at [W.] strasse yyy had been pushed in, and doors and windows were damaged, unlocked or missing. The appellant was a federally diploma-qualified pharmacist, sole shareholder and sole member of the board of directors of [F. AG] and [G. AG] , and had decided on the relocation of production in 2011. By his own account, he was regularly present, at least once a week, at the property at [V.] strasse xxx.
Considerations
The private claimant [B.] 's standing (objection of lack of party status) was not addressed, because the appellant had not demonstrated a legal interest in protection within the meaning of Art. 81 para. 1 lit. b FSCA: the admission of the private claimant had no bearing on the outcome of the proceedings, since the Public Prosecutor's Office also sought convictions and no compensation was awarded. Insofar as standing was disputed in the proceedings before the Federal Supreme Court, the Federal Supreme Court did not enter into the matter.
The factual complaints of arbitrariness (Art. 97 para. 1 FSCA, Art. 9 Cst.) were dismissed. Arbitrariness exists only where the assessment of evidence is manifestly untenable; the mere possibility of a different outcome is not sufficient. The complaint must be substantiated (Art. 106 para. 2 FSCA). The lower court was entitled, without arbitrariness, to assume that the substances at issue had been found and that labelled contents corresponded to the actual contents. The principle 'in dubio pro reo' has no significance before the Federal Supreme Court beyond Art. 9 Cst.
Regarding the storage of chemicals (Art. 50 para. 1 lit. b ChemA in conjunction with Arts. 8 and 21 ChemA), the Federal Supreme Court held that Art. 21 ChemA requires hazardous substances to be protected against external influences and kept inaccessible to unauthorised persons. Uncleaned empty containers may be treated in the same way as full ones, based on the expert recommendations of the guideline (with FOEN participation) and the statement of an expert. The objective elements of the offence are met, because the properties were insufficiently secured against access by unauthorised persons. As regards the subjective elements: as the sole member of the board and shareholder who had decided on the relocation, the appellant should have ascertained that no sensitive substances had been left behind. He knew…