Zurich City Councilor Simone Brander was before the Supreme Court because of a political action at the beginning of the corona pandemic. The SP politician appeared despite a herniated disc.
The SP politician Simone Brander, who was elected to the city council in the spring, had to answer to the Supreme Court on Tuesday.
On a morning in May 2020, bicycle activists gather on Gessnerallee near Zurich main station. They set up red and white traffic cones on the busy street and block off the right lane of the street. They lay out stencils, shake spray cans and spray “Züri car-free” onto the asphalt. Their concern: more space for bicycles on the narrow streets of the city.
Right in the middle of the action is Simone Brander – at that time still a SP municipal councilor and vice-president of the parliamentary group, elected to the city council this spring. On that morning in May, she acted as spokeswoman for Umverkehr, an association committed to sustainable mobility.
First a fine, now an acquittal
The political action had an aftermath: it brought Brander an indictment from the public prosecutor’s office and in March 2021 a conviction for violating the Covid 19 ordinance in the single court. Because at that time there was a strict ban on demonstrations and meetings in the canton of Zurich due to the corona virus.
But now the Zurich Supreme Court has overturned the decision of the lower court. After a short hearing, it ruled on Tuesday that Brander, like two co-defendants before her, had not violated the Covid regulation with the action at the time. Brander will also receive compensation of 9,000 francs.
Chief Justice Christoph Spiess said in the brief reasoning behind the judgment that, in the opinion of the court, the alleged facts were not created. “There was no crowd because there were no more than five people standing close together. But it wasn’t an event either, because then the performance would have had to attract a lot of people.” Spiess refrained from making fundamental statements on the applicability of the Covid 19 regulation. Whether a Federal Council emergency ordinance may also contain penal provisions can remain open.
Spiess also briefly mentioned a ruling by the European Court of Human Rights (ECtHR). This was not entirely irrelevant to the decision. In March, the ECtHR classified the absolute ban on events, which applied for ten weeks at the beginning of the pandemic, as a violation of freedom of assembly. A month ago, the High Court justified the acquittal of two bicycle activists accused of the same action.
A brief appearance despite a herniated disc
Brander appeared in court in person on Tuesday. This despite a herniated disc that required emergency surgery. Since Brander is restricted in her mobility, she is currently working mainly in the home office and refrains from public appearances.
Before the Supreme Court, she left it with a brief statement. She is demanding an acquittal, she has already done everything else before the district court. At the time, she had declared that with the campaign she and her fellow campaigners had made a contribution against the consequences of the pandemic. They wanted to show that you can be safe on the bike even during Corona. The participants maintained minimum distances during the campaign and wore masks. Nota bene at a time when there was no obligation to wear a mask.
Her defense attorney Stephan Bernard took over the reason for the demand for an acquittal before the Supreme Court. In his remarks, he fundamentally questioned the legality of penal provisions in the ordinance. “There is no valid legal basis for criminal liability, which would have allowed the measures taken to be punished with imprisonment or a fine.”
The requirement of certainty was also violated. At that time, the Covid regulation changed weekly. But a law must be sufficiently clear so that citizens can use it as a guide. It was not clear what was legal and what was illegal. You have to credit Simone Brander with at least one ban error.
Bernard also referred to the judgment of the Supreme Court issued a month ago and the decision of the European Court of Human Rights. The two accused had already been acquitted on the basis of the Strasbourg verdict. “This is a prejudice that concerns exactly the same facts.”
Single judge still saw a slight culpability
Unlike Brander and her defense attorney, it had seen the single court in March of last year. The judge sentenced the politician to a conditional fine. He thus followed the request of the public prosecutor, who had also demanded a conditional fine. The judge stated at the time that the applicability of the Covid-19 regulation to the case stood up to legal scrutiny. In principle, a Federal Council emergency ordinance may also contain penal provisions.
It was also stated that demonstrations were also prohibited. And Brander was involved in organizing this illegal event. But the single judge also found that it was a trifle and that Brander was only slightly at fault.