By Dr. Rafael Brägger, Attorney at Law, Pachmann Attorneys, Zurich, Switzerland
Football is a team sport.
Ball-loving players, who prefer to get bogged down in individual actions instead of passing to the better-positioned teammate, are, therefore, a thorn in the side of every coach. But do you really have to give the ball back at any price? That is what a landowner in Dietlikon, in the Canton Zurich, recently tried to find out.
On a sunny afternoon in June 2021, a football that had come flying from the school playground opposite landed in this citizen's garden. The municipal police officer, who happened to be present, then demanded that the citizen retrieve the football from his garden and hand it over to the police officer, otherwise the citizen would be guilty of disobeying a police order. The ball-loving citizen did not accept this and filed criminal charges against the policeman for abuse of authority and coercion.
Since the police officer reported was a police officer and thus a civil servant, the initiation of criminal proceedings against him requires the prior consent of the higher court (so-called authorisation). The High Court of Zurich came to the conclusion that the police officer's action had been covered by the Zurich Police Act and that no undue coercion had been exercised and refused to authorise the opening of a criminal investigation against the police officer. The citizen appealed against this decision to the Swiss Federal Supreme Court.
The Federal Supreme Court (Judgment 1C_32/2022 of 14 July 2022) focused on whether there was a minimum level of evidence of criminally relevant conduct; the aim was namely to protect officers from wanton criminal prosecution and to ensure the smooth functioning of state organs. However, according to the Federal Supreme Court, it was not apparent to what extent the police officer, by demanding the return of the football that had been involuntarily lost by the players on the school playground, should have committed the offence of abuse of authority or coercion. Even if a certain coercive situation may have existed for the complaining citizen, it could not be said that there was unlawful coercion, the threat of serious disadvantages or the unlawful use of official authority against him.
The Federal Supreme Court did not accept the complainant's objection that it was not apparent in what way he had violated public order and security by withholding the football, because no violation was required for the police to be allowed to take action. The police order to hand over the football could certainly be understood in the sense that it was intended to restore the property situation or to maintain public safety and thus belonged to the police officer's area of responsibility.
Finally, the Federal Supreme Court pointed out the prehistory of the case, as this citizen had already reported around 30 people for trespassing and damage to property, who had tried to retrieve their missed footballs from the garden themselves. In this respect, the police officer's action had also served the preventive avoidance of further disputes, which admittedly proved to be a fallacy in the present case.
The Swiss Federal Supreme Court thus agreed with the Zurich High Court and recognised that the authorisation to prosecute the police officer had rightly been refused.