Zurich: first judgments against mask refusers

One case was originally about a fine of 100 francs, the other one of 330 francs: In the first cases of guilty verdicts against corona mask refusers, the higher court made second-instance judgments. So far, the NZZ has received two decisions in which the convictions for violating the Covid 19 ordinance are confirmed as lawful. Both procedures were settled in writing and without negotiations. However, at least one of the judgments has already been appealed to the Federal Supreme Court.

One case concerns a 51-year-old woman. She is accused of not wearing a face mask in the fenced but publicly accessible outdoor area of ​​the main collection point for recycling in the city of Illnau-Effretikon during opening hours, contrary to the obligations in force at the time. Posters were posted at the collection point that pointed out the obligation to wear masks. The woman had also been asked by an employee to put on a mask. She challenged a penalty order with a fine of 100 francs, the Pfäffikon District Court confirmed the fine in October 2021.

Face masks are harmful to health

The accused claims that she was exempt from the mask requirement. She gave the relevant reasons in a “somewhat heated conversation with the angry collection center manager”. However, she does not explain in the grounds of appeal what specific medical or other reasons these were. Her pleading before the Pfäffikon District Court showed that she believed that face masks were generally harmful to health, which is why she did not have to comply with the obligation to wear a mask.

In addition, a collection center manager is not authorized to order measures such as the obligation to wear a mask. According to the judgment of the Supreme Court, however, the accused fails to recognize that the provisions of the Covid-19 Ordinance regarding the obligation to wear masks were not issued by the head of the recycling collection point, but by the Swiss Federal Council. Finally, the accused also took the position that the Covid 19 regulation was not valid at all.

The Supreme Court disagrees. With the ordinance there was a sufficient legal basis, based on which the woman was to be found guilty. The fine of CHF 100 was deemed reasonable and confirmed. The examination and court costs have so far amounted to 2330 francs, which the 51-year-old also has to pay.

ID not shown on the train

In the second case, a 38-year-old was accused of not wearing a protective mask on an SBB train traveling between Zurich Oerlikon and Zurich HB in November 2020 and of deliberately not following the instructions of the security staff to put on a mask or identify themselves be. The Zurich District Court rejected his appeal against a penalty order and sentenced him to a fine of 330 francs in July 2021 for violating the Covid 19 ordinance and disregarding orders from the railway/security staff in accordance with the Transport Act.

The accused had explained to the lower court that he had worn a mask on the train journey, but that it got wet while eating and drinking, got a hole, and he disposed of it. He also carried a letter from a doctor confirming that there was a special reason for being exempt from the obligation to wear a mask. The security personnel wrongly charged him. The lower court had qualified these statements as contradictory and as not credible protective claims. In addition, the train driver had stated that the ban on covering up in Switzerland precluded the obligation to wear a mask.

In its written judgment, the Supreme Court justified, among other things, that the obligation to wear a mask is a legally valid exception to the ban on covering up for health reasons. In September 2020, the obligation to wear a mask in public transport was legal, the train driver could not prove an exception that applied to him, and the security staff was authorized to ask for his ID. The fine of 330 francs is confirmed. In this case, the costs previously incurred in addition to the fine, which the train driver has to pay, amount to 1110 francs.

Judgments SU210034 of February 15, 2022 and SU210045 of February 16, 2022, not yet final.