Landlord is successful with an objection because of the Covid regulation

Processes relating to the corona pandemic continue to concern the Zurich courts. The landlords of two restaurants in Zurich’s district 4 are affected in two completely independent cases: On Thursday, the 33-year-old manager of a well-known milieu pub will be tried in the Zurich district court. He contested a penal order from the governor’s office, which initially sentenced him to a fine of 6,000 francs, and later 2,500 francs.

During a check on October 23, 2020, the city police found two unmasked guests in the restaurant. One person went straight to the dance floor, the other came from the toilet. In addition, different groups of guests are said to have mixed at one table. The managing director was responsible for the implementation of the corona protection concept and compliance with the mask requirement and the distance regulations.

Negligence in the then Covid regulation not punishable

In the penalty order, the managing director was also accused of multiple violations of the Food Act. During three inspections in August 2019, September 2019 and on November 14, 2019, employees of the food inspectorate found hygienic deficiencies. However, the three-year statute of limitations expired just a few days before the trial began, which is why this charge is dropped by the single judge.

The accused made no statements on the matter in court. However, he appeared with a lawyer who took a close look at the different versions of the constantly changing Covid-19 regulation. The accusation in the penalty order is negligent commission of the crime. In the then applicable Covid 19 ordinance of October 19, 2020, however, only intentional commission of a crime was expressly punished. Negligence was only included in the revised version of January 27, 2021.

The single judge agrees with this reasoning and has no choice but to acquit the accused. “Without law there is no punishment,” she says. Therefore, there is no longer any need to discuss the matter. A negligent act was expressly described in the penalty order. The court and investigation costs are borne by the state. However, she only awards the landlord compensation of 2,500 francs for his legal fees and not 6,500 francs, as requested by the defense attorney.

Another host rebuffed before the Supreme Court

In the second case, the higher court has already decided: the 57-year-old patent owner of another restaurant in district 4 had appealed against a conviction of the Zurich district court. He is accused of having served drinks to at least 14 guests in the restaurant on June 13, 2020 from midnight to around 3 a.m., although the restaurant should have remained closed from midnight. The host also failed to ensure that the recommendations of the Federal Office of Public Health regarding social distance – at least 1.5 meters – were observed between the individual groups of guests.

In October 2021, the Zurich District Court found the 57-year-old guilty of violating the Covid-19 Ordinance 2 and punished him with a conditional fine of 10 daily rates of 30 francs each. There were also 2,000 francs in investigation and court costs. In the appeal proceedings, the accused asserted, among other things, that there were only friends and employees in his restaurant at the time in question. However, the host did not name names.

Therefore, the Supreme Court also came to the conclusion that these were regular restaurant guests, although it could not be ruled out that one or the other was personally known to the landlord. Another argument put forward by the accused was that the penal provisions of Covid-19 Ordinance 2 were not legally valid at all. However, the Supreme Court – like the lower court – rejected this. It confirmed the conditional fine and also imposed on the landlord second-instance court costs of an additional 3,000 francs.

Judgments GC220122 of November 17, 2022 (BG Zurich) and SB220066 of October 4, 2022 (Supreme Court), not yet final.