A police officer has been acquitted of abuse of office for using pepper spray. The official is granted a factual error due to the unpredictable behavior of the injured party. He also behaves in a conspicuous and uncontrolled manner in the courtroom.
During the pleadings of the defense attorney in the district court of Zurich, the private prosecutor groans and snorts loudly and speaks indignantly in between.
A 33-year-old canton police officer is standing before the Zurich district court because he indisputably sprayed pepper spray in the face of a pensioner from a distance of 1.5 meters. The victim, a retired psychiatrist, is also present in the courtroom. During the defense attorney’s plea, he groans and snorts loudly and interjects indignantly. The single judge threatened him several times that he would be expelled from the room if he didn’t stop.
The defense attorney’s line of argument is based, of all things, on the thesis that the injured party tends to behave in an uncontrolled manner if he is “ugly”. And the injured party shows in the courtroom that this is exactly the case. The single judge admonished him: “You don’t have to prove how quick-tempered you are.” He could “be quiet or go out voluntarily”. In the end, however, the judge did not carry out his threat.
Visit at night at 2:15 am
The incident was five years ago: On June 30, 2017, a Brazilian woman was unable to identify herself at a traffic checkpoint. The police suspected illegal entry. The woman told officials that she left her passport with a couple in Zurich, where she lives. The policemen rang the bell there at 2:15 am. However, the retired couple refused them entry into the apartment and the handing over of papers. The psychiatrist asserted in court that the woman did not live with them and that he knew nothing about a passport. It’s all nonsense.
The situation at the front door escalated. Eventually, the police used pepper spray. Six other officers moved out. The couple was then taken into police custody for 36 hours, and the Brazilian was deported. The pensioners were charged and acquitted in June 2018 on charges of using violence and threatening officials, obstructing official action and promoting illegal residence. All proceedings against the remaining police officers were dropped. The event is said to have produced 16 criminal charges in total.
Behavior of the pensioner interpreted as an attack
The police officer who is now the only one accused explains in the courtroom that the pensioner suddenly ran towards him at the front door with his arm outstretched. The hand pointed to his neck. He interpreted this as an attack on himself. Due to the previous short-tempered behavior of the injured party, he was afraid that he would be grabbed by the neck. From his point of view, he acted correctly in self-defense. With a physical defense, the risk of injury would have been greater.
The public prosecutor, who does not have to take part in the single judge proceedings, has demanded a conditional fine of 60 daily rates of CHF 140 for abuse of office and simple bodily harm. The psychiatrist’s lawyer emphasizes that the use of pepper spray was completely disproportionate. Two fit, well-trained, young police officers faced “an old Bappeli”. The defense explained that the police officer had the right to repel a surprise attack on him.
The judge acquits the accused. The court could not create legally sufficient whether the pensioner really wanted to attack or not. However, based on the general behavior of the pensioner, the policeman could subjectively assume that he would at most be attacked. He felt attacked and thus found himself in a factual error. In the dynamic and very hectic events, the defense with the pepper spray was proportionate.
Judgment GG220105 of June 14, 2022, not yet final.