A 63-year-old landlord has been sentenced twice by the Andelfingen district court for negligent animal cruelty. The Supreme Court has now acquitted him.
Because of a fence in which a deer died, a host stood before the Andelfingen district court.
A dead deer in the Zurich Weinland triggered a more than six-year judicial farce, which has now been finally ended: On July 31, 2016, a doe got tangled in the fence of a raspberry field. A 63-year-old landlord planted a 20-square-meter field of raspberries to produce his own raspberry spirit, which he offered in his restaurant. To protect it from being eaten by wild animals, he fenced it in with a mobile electric fence, a so-called “Flexinet”.
The alarmed district chief tried unsuccessfully for around half an hour to untangle the animal from the fence, but ultimately shot it with his shotgun to “free it from its agonizing situation”, as the indictment put it. It was determined that the deer was a lactating mother. Therefore, it had to be assumed that the fawn had also died somewhere.
In August 2018, the Andelfingen district court sentenced the innkeeper to a conditional fine of 10 daily rates of CHF 70 and a fine of CHF 300 for negligent animal cruelty. By putting up the fence, he violated his duty of care and created a source of danger that could have been avoided. At that time, the costs for the criminal investigation had already accumulated to around 25,000 francs.
Defense attorney not admitted to the bar
The landlord didn’t let that sit and took the case to the Supreme Court, which had to reverse the verdict for formal reasons. Because the landlord had been represented before the district court by a family friend who is a former public prosecutor. He did not have a license to practice law, was not even admitted as a lawyer and should not have represented the accused in the first trial, which according to the High Court actually “should have been recognized” by the Andelfingen District Court.
There was a defense change. In September 2021, the Andelfingen District Court again sentenced the landlord to negligent animal cruelty in a second trial, this time to a conditional fine of 5 daily rates of CHF 70 each. Again the convict appealed. The High Court has now ruled on the case in a written procedure without a trial.
In its second judgment, the Andelfingen district court stated that the landlord had “misused” a mobile pasture net that was not powered to protect his raspberries. Based on his relevant prior knowledge, it was foreseeable that a deer could get caught in the fence. From a subjective point of view, the court held that the innkeeper must have known about the danger he was creating: around twelve years earlier, a roebuck had gotten caught in his fence and had been shot by a hunter.
«Socially adequate and permissible risk»
In the course of the proceedings, the public prosecutor’s office and the veterinary office had always asserted that cantons and animal welfare organizations advised against the use of such fences in leaflets and recommendations, as wild animals could get entangled in them. The Supreme Court now sees it very differently: The fence that was erected was permissible.
It may be that such fences are only recommended for livestock grazing. However, with regard to a possible danger for animals outside the pasture fence, it is irrelevant whether there are grazing animals inside the enclosure or whether there is a planting. The fence was basically suitable for “avoiding dangers such as those emanating from a deer”.
According to the Supreme Court, the fact that the last incident involving a deer was twelve years ago also proves that no deer had gotten caught in the fences in that long period of time. In this respect, the danger created cannot be classified as particularly great. The landlord was aware that such fences offer the plants effective protection against being eaten by wild animals. When taking protective measures, there is no general obligation to “best practice”. The “socially adequate or permitted risk” sets limits to the duty of care.
The accused’s behavior was therefore not negligent, because there was a high risk of wild eating for the berry culture and “a permitted and common, correctly installed and maintained fence was used” to avert danger. Due to the relatively rare incidents with deer, the relatively small residual risk can be classified as socially appropriate and therefore permissible.
Acceleration requirement violated
The court only briefly commented on the question of avoidability: Even if the safety precautions recommended in leaflets, such as marking tape or live wires, had been attached, it could not be said with a sufficient degree of probability that the deer would not have gotten tangled in the fence. Because the central element of the breach of the duty of care is missing and avoidability is to be denied, the accused must be acquitted of the charge of negligent animal cruelty.
The accused was awarded a court fee of 13,553 francs and 60 centimes from the court treasury for his defense costs in both cases. In their decision, the chief judges also state the obvious, namely that the speed-up requirement had been violated.
As early as the August 2018 trial, the now retired Andelfingen single judge Lorenz Schreiber stated that such a case could not really be solved in a reasonable way by means of criminal law and that it was “almost a crime”, 25,000 francs, which the criminal investigation had cost up to then to get involved in such a process. The money would have been better invested in nature conservation.
Judgment SB220024 of 15 July 2022, final.