TF, 11.14.2025, 6B_118/2024
Facts
The manager of a bar is accused of having, on September 14, 2021, expelled a municipal inspector and refused entry to two police officers who had arrived to conduct an inspection regarding Covid-19 pandemic control measures. He is also accused of failing to check the Covid certificates of at least four customers present in his establishment on September 17, 2021. Convicted by cantonal authorities for obstructing an official act, violating the cantonal law on catering, and breaching the Covid-19 Ordinance, he has appealed to the Federal Supreme Court. He argues, among other things, that the evidence was collected illegally and that the repeal of the Covid-19 Ordinance should lead to his acquittal on that count.
Law
The Federal Supreme Court reiterates that the application of the Criminal Procedure Code (CPC) presupposes the existence of sufficient suspicion of an offense within the meaning ofArt. 309 para. 1 CPC. Failing this, the measures taken fall under administrative police powers, governed by cantonal law, and pursue objectives of prevention and maintenance of public order. Evidence collected at this stage does not constitute criminal evidence and does not fall within the scope ofArt. 141 CPC, particularly regarding the obligation to inform the person concerned of their procedural rights.
Furthermore, the Federal Supreme Court recalls that the principle of lex mitior (Art. 2 para. 2 SCC) requires the application of the law most favorable to the defendant when substantive law changes between the time of the offense and the judgment. However, this principle does not apply to temporary laws (Zeitgesetze), the repeal of which results from a change in factual circumstances rather than a new legal assessment. Acts committed during their period of validity therefore remain punishable.
Application to the specific case
The Federal Supreme Court finds that, during the inspections on September 14 and 17, 2021, there was no sufficient initial suspicion within the meaning of Art. 309 CPC to justify the opening of criminal proceedings. The police intervened in support of a municipal administrative inspection, with the sole purpose of ensuring it proceeded smoothly. The inspections therefore fell under administrative police powers and not criminal proceedings. Consequently, the evidence collected is admissible and does not fall under the scope of Art. 141 CPC.
Regarding the breach of the obligation to check Covid certificates, the Federal Supreme Court confirms that the Covid-19 "special situation" Ordinance is a temporary law. Its repeal resulted from the favorable evolution of the health situation—a change in factual circumstances—rather than a new legal assessment of the offense. The principle of lex mitior (Art. 2 para. 2 of the Swiss Criminal Code) is therefore inapplicable, and the offense remains punishable for acts committed during the period the ordinance was in effect.
Outcome
The Federal Supreme Court dismissed the appeal and upheld the appellant's conviction for obstructing an official act, violating the cantonal law on catering establishments, and violating the Covid-19 Ordinance.
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