Bibliography
Beck Peter, Die Beweisführung im Haftpflichtrecht, Freiburger Sozialrechtstage 2006, 227 ff.; Berger-Steiner Isabelle, Das Beweismass im Privatrecht, Diss., Bern 2008; Christen Rita, Gutachten bei Bergunfällen, in: HAVE 3/2015, S. 268 ff.; Elsener Fabio/Wälchli Dominic, Pisten-Skifahren, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Fellmann Walter, Sekundäre Darlegungslast, in: HAVE 2022/1, S. 34 ff.; Gerber Andreas, Strafrechtliche Aspekte von Lawinen- und Bergunfällen, unter Berücksichtigung der schweizerischen Gerichtspraxis, Diss. Zürich 1979; Heer, Marianne, in: Niggli, Marcel Alexander/Heer, Marianne/Wiprächtiger, Hans (Hrsg.), Basler Kommentar, Schweizerische Strafrechtprozessordnung, Jugendstrafprozessordnung, 2. Aufl. 2014; Koch, Patrick, Skitouren und Variantenfahren Teil 1, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Laube, Viktor, Der schmale Grat der Fahrlässigkeit, Einige Überlegungen zum «Jungfrau-Drama», in: Jusletter 16. November 2009; Müller Rahel, Haftungsfragen am Berg, Diss., Bern 2016; Niggli Marcel Alexander/Heimgartner Stefan, in: Niggli Marcel Alexander/Heer Marianne/Wiprächtiger Hans (Hrsg.), Basler Kommentar, Schweizerische Strafrechtprozessordnung, Jugendstrafprozessordnung, 2. Aufl. 2014; Tophinke Ester, in: Niggli Marcel Alexander/Heer Marianne/Wiprächtiger Hans (Hrsg.), Basler Kommentar, Schweizerische Strafrechtprozessordnung, Jugendstrafprozessordnung, 2. Aufl. 2014; Saxer Urs/Thurnheer Simon, in: Niggli Marcel Alexander/Heer Marianne/Wiprächtiger Hans (Hrsg.), Basler Kommentar, Schweizerische Strafrechtprozessordnung, Jugendstrafprozessordnung, 2. Aufl. 2014 Stratenwerth Günter, Schweizerisches Strafrecht, Allgemeiner Teil I, 3. Aufl., Bern 2005; Summermatter Daniel/Jacober Claudia, Beweismass beim Kausal- und Motivationszusammenhang, HAVE 2/2012, S. 136 ff.; Summermatter Daniel, Kausalität, Ein Handbuch, Bern 2019; Hans Vest, Freispruch der im Bergunfall an der Jungfrau angeklagten militärischen Bergführer – ein Fehlurteil?, in: Jusletter 27. September 2010; Vuille Miro, Wandern, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar.
I. Introduction
Mountain sports activities can end up in court. In particular, criminal proceedings sometimes attract great attention from the public. However, media coverage often only reflects a small - usually the last - part of an extensive procedure. The aim of this article is to provide an overview of criminal and civil proceedings, with a special focus on mountain sports accidents, to the affected mountain sports enthusiasts as well as interested third parties. Public law issues, namely the approval procedure for the commercial exercise of a risk activity, will not be addressed.
A fictitious case serves as an illustrative example for the following presentation: Several participants have booked a day tour with the mountain bike through the mountains with Biketour AG. The tour guide is employed by Biketour AG. At one point, the path led through rocky and steep terrain. While other participants pushed the bike on this section, one participant rode the section on the bike. He lost his balance, fell and sustained serious and permanent injuries.
II. The Criminal Procedure: Course and Special Features
The reasons for initiating criminal proceedings are, for example, a fall while climbing or mountaineering, a collision of people while skiing on the slopes or with an obstacle on the slope, an avalanche with personal injuries, or the injury of athletes during a competition due to a poorly laid out course. The following is intended to generally describe the course of such proceedings and highlight some particularities. The special features of the criminal proceedings in the event of a mountain sports accident particularly concern the determination of the facts and the definition of the duties of care, taking into account the available norms and the obtaining of expert opinions.
A. Initiation and Termination of Criminal Proceedings
1. Official Initiation
If there are reasons to suspect a criminal offense, criminal authorities are obliged to initiate and conduct proceedings (Art. 7 Para. 1 StPO). This obligation applies in the event of a mountain sports accident if a person has been seriously injured or killed. In the example case described above, the ambulance is alerted and the police are informed at the same time. Both go to the scene together. The public prosecutor's office is informed by the police. It is at their discretion whether they go to the accident site. This will be particularly advisable when, in serious and complex cases, the public prosecutor's office wants to form its own picture of the specific circumstances and conditions in close temporal relation to the accident in order to possibly order immediate measures. The determination of the facts within the framework of the criminal preliminary proceedings thus already begins at the accident site. This important aspect in the procedure will be discussed separately below (Rz. 8 ff.).
2. Initiation After Criminal Complaint
If the injured person in the introductory case had only suffered minor injuries (simple assault according to Art. 125 Para. 1 StGB) during the fall, proceedings would only be initiated if he filed a criminal complaint against the tour guide (Art. 303 Para. 1 StPO). He has a deadline of three months to observe (Art. 31 StGB). Filing a criminal complaint and constituting oneself as a private plaintiff in criminal proceedings has the advantage that the facts are determined ex officio by the criminal authorities differently than in civil proceedings (see below Rz. 8 ff.). Thus, the injured person in the introductory case would benefit from the fact that the sequence of the accident and the basics of the professional duties to be observed by the tour guide are accurately derived and examined by the police and possibly expert opinion, and he can assert civil claims based on this (see below Rz. 60 ff.). However, if the proceedings against the tour guide are subsequently terminated, the injured person may under certain circumstances be required to cover the costs of the lawyer, which can amount to several thousand francs (Art. 432 Para. 2 StPO; BGE 147 IV 47 E. 4.2.4-4.2.6).
3. Dismissal Without Judicial Review
Regarding the question of whether a criminal proceeding can already be dismissed during the preliminary proceedings, the so-called principle of "in dubio pro duriore" (when in doubt, for the harsher) applies. According to this, a dismissal by the public prosecutor's office may only be ordered in cases of clear immunity from prosecution. In cases of doubt, an indictment and judicial assessment must take place (BGE 137 IV 219 E. 7.1; see also the judgment of the Federal Supreme Court 6B_553/2022 of 16.09.2022 E. 2.2). If the conditions for dismissal are not met, the public prosecutor's office issues a penalty order or files an indictment with the court, leading to a main proceeding. Only in the proceedings before the court does the principle of "in dubio pro reo" (when in doubt, for the defendant) apply as part of the presumption of innocence (BSK StPO-Tophinke, Art. 310 N 75).
In the case of the introductory scenario, if the tour guide claims that he explicitly pointed out the difficult section of the path to the participants and instructed them to push the bike, but the accident victim states that he did not receive this instruction, it's a case of one person's word against another's. In case of doubt, it should be assumed to the disadvantage of the tour guide that insufficient instruction took place, and an indictment should be filed. If the court also does not arrive at a sufficient conviction in the subsequent court proceedings - for example, after further witness interviews - that an instruction was omitted, it should be assumed in case of doubt and the tour guide should be acquitted.
B. Determination of the Facts
1. Relevance
The criminal authorities, i.e. the police, public prosecutor's office and courts (Art. 12 f. StPO) ex officio clarify all facts relevant for the assessment of the act and the person accused (Art. 6 para. 1 StPO). Incriminating and exculpatory circumstances must be investigated with equal care (Art. 6 para. 2 StPO; see Koch, Rz. 49).
Only a precise processing of the events can provide a basis for determining whether a criminal offense really exists or if duties of care were violated. Against this backdrop, it is generally not advisable for the defense to behave completely passively and to hope for the principle of in dubio pro reo. For example, in the military justice proceedings regarding the fatal mountaineering accident at Jungfrau, the private report commissioned by the defense and the statements of the eyewitnesses showed that the court expert and accordingly the indictment were based on inaccurate facts: The court did not follow the court expert's hypothesis that the fallen recruits had lost their footing due to the snow pressure in the fresh snow. Namely, due to the fact that the fallen persons were not buried, the uppermost steps were still visible and these took place in the old snow in the blown-off terrain, it was assumed that there was a firm stand and only a hasty action as a result of the fright of one or more recruits led to the dragging accident according to the court's view (Judgment MG 7 09 161 of 20.11.2009, esp. E. 10.4 and 13.4).
2. Principle of Indictment
If an indictment is filed after the preliminary proceedings, it must precisely describe the accusation laid against the perpetrator and thus also the facts of the case. The most accurate possible determination of the facts therefore not only has an impact on the subsequent assessment of the facts by the court, but also on the question of whether the principle of indictment has been satisfied. If the indictment does not meet the requirements, it must be rejected by the court for improvement. If no sufficient indictment is subsequently filed, the proceedings will be discontinued (BSK StPO-Niggli/Heimgartner, Art. 9 N 62). However, it can be observed in practice that the complaint of an insufficient indictment rarely succeeds (see most recently judgement of the Federal Court 6B_101/2022 of 30.01.2023 E. 1.5, intended for publication).
In practice, the principle of indictment is complied with according to judgments if a wrong assessment of the avalanche situation "on the Rottalsattel" is indicted, but the snow slab has gone off in the immediately adjacent slope (Judgment MG 7 09 161 of 20.11.2009 7 E. 17.3). The predictability of triggering an avalanche in moderate avalanche danger is not covered if only the predictability in significant danger is indicted (Judgment MG 7 09 161 of 20.11.2009 E. 17.5.5.ck; critically Vest, Rz. 33, according to which this is a purely normative classification). It was left open whether the principle of indictment was observed if an avalanche accident is indicted instead of a dragging accident or if the assessment of the temperature development is not mentioned in the indictment (Judgment MG 7 09 161 of 20.11.2009 E. 17.5.5 ci and cn).
3. Police Investigations and Involvement of Specialists
The determination of the facts is of crucial importance in mountaineering accidents. Interviews are usually conducted directly on-site by the police. The situation found should be recorded and photographed. In the introductory case, the location of the injured person, the condition of the bike, the equipment, the affected section of the trail, and the fall path should be documented precisely using a report and photos. The bike can be seized for further technical investigations. Not least due to weather conditions, a change in the situation must always be expected (for ski tours see Koch, Rz. 49).
The investigations in the case of a mountaineering accident are primarily the responsibility of the competent police, who are also the first on the scene. After the opening of an investigation by the public prosecutor's office, the latter can commission the police to conduct further investigations, for example, with delegated interrogations (Art. 312 StPO, for the rights of the persons interrogated see below Rz. 17).
While in some cantons specialized units are responsible (e.g. Alpine Cadre Graubünden), there are still numerous cantons without specialized police units. This results in the risk that the importance of certain aspects and issues is not recognized due to lack of expertise, and investigative actions are omitted that cannot be made up for.
In such situations, it is recommended that the private plaintiff or the accused person demand the involvement of an expert person already for the determination of the facts by the police (Christen, p. 275). This expert person thus already supports the investigative authorities in determining the facts (for the assessment of the facts see below Rz. 35), for example in answering the question of which of several possible persons had triggered the avalanche (cf. BGer judgment 6P.163/2004 of 03.05.2005 E. 5). If such a request is not complied with, the only option left to the involved legal representative is to at least have a privately appointed expert advise them.
4. Participation of Involved Persons
In many mountaineering accidents, the problem arises that often no witnesses other than the victim and the potentially accused person (who can also be a victim themselves) have observed the accident. Information, for example, about arrangements made between the participants, can therefore only be obtained from them. For example, in the initial case, it can be assumed that the other tour participants were concentrating on the path and did not see whether and from which point the accident victim got on the bike. Only the tour guide and the accident victim know what individual warnings were given.
The potentially accused person is expected - by the victim and often also by the investigating authorities - to participate in the determination of the facts. However, it should not be forgotten that an accused person does not have to incriminate themselves and may specifically refuse to cooperate (Art. 113 para. 2 StPO). These rights exist throughout the duration of the proceedings. The accused person must be informed of the right to refuse to testify before the first interrogation (Art. 158 para. 1 lit. b StPO). They have the right to be accompanied by a lawyer (first hour lawyer, Art. 159 StPO). In this context, it should be noted that the SAC and the Mountain Guide Association maintain lists of lawyers specialized in mountain law.
As far as possible, it should be defined from the beginning in which role the involved persons are participating in the procedure. Only persons who are not involved in the commission of the crime and are not so-called information providers are to be heard as witnesses and are obliged to testify (Art. 162 StPO). If it cannot be ruled out that a person may be considered as a perpetrator, they will be interviewed as an informant (Art. 178 lit. d StPO).
If the participants are already questioned by the police at the scene of the accident or later in the hospital, these statements are already included in the police report. In the further proceedings, these statements are of great relevance as so-called first-hour statements. If there are later corrections to the statement, the court must take into account in its assessment that these could possibly have been made in light of the now-known possible criminal consequences. Even if the accused person has an interest in contributing to the search for the truth, especially to meet expectations in the victim's environment, therefore, "less is more" at this early stage.
5. Crime Reconstruction and Inspections
In accidents in nature, external conditions can change rapidly. However, these are relevant to the question of whether those involved in the accident behaved correctly in view of the concrete circumstances. Therefore, real-time determination of the facts, ideally already at the scene of the accident, is of particular importance. For example, a descent site that was dry at the time of the accident may be wet and slippery at the time of further investigation, a stream can rise within minutes or the solar radiation can change. For this reason, too, the (judicial) expert should, if possible, inspect the site on the day of the accident, as conditions in the mountains can change very quickly (Gerber, p. 208; for ski tours see also Koch, para. 49. This was also the case in the judgment MG 7 09 161 of 20.11.2009, among others E. 9.1.1, when the court expert was on site already in the afternoon of the day of the accident).
If there are no findings for the exact time of the accident, for example because the weather conditions only allowed the victim to be recovered, a subsequent crime reconstruction (as part of the judicial inspection) must take place under realistic conditions. Waiting until comparable events occur can also pay off. If the sun's rays and glare play a significant role in a boat accident, it may be advisable to carry out the inspection or crime reconstruction one year later at the same time. A path to the abseiling point should sensibly not be taken in winter with ice and snow, but on a day that most closely matches the conditions at the time of the accident. If reinforcement bars protruding years after the accident are visible in photos by the expert, it must be asked whether this condition already existed at the time of the accident. Only the photos (of the KTD) from the day of the accident are relevant (judgment of the High Court of the Canton of Bern, SK 18 12 of 25.01.2019 E. 13.5 p. 20).
In crime reconstruction, not only the location of the accident, but also other relevant circumstances need to be reproduced. For example, whether and how certain points were mastered beforehand plays an important role in assessing which skills could be expected of the victim (judgment of the High Court of the Canton of Bern, SK 18 12 of 25.01.2019 E. 18.3.2 E. 32).
C. Definition of Duty of Care
In the question of whether the accused person can be accused of criminal behaviour, it is examined whether there is a violation of duty of care and where to draw the line with the risk inherent in sports (see Koch, para. 58 and 73).
In this context, the adjudicating court faces the question of which sources should be used to define the duty of care. The expert's report plays a special role in this respect.
1. Sources of Duty of Care
a. Risk Activity Law
Duties of care are defined in Art. 2 of the Federal Act on Mountain Guiding and the Provision of Other Risk Activities (RiskG). These are based on the general hazard principle: "Anyone who offers an activity subject to this law must take the measures that are necessary according to experience, possible according to the state of technology, and appropriate given the circumstances, so that the life and health of the participants are not endangered." A non-exhaustive list of these measures can be found in Art. 2 Para. 2 RiskG.
In this context, however, it should be noted that only the following commercially offered sports are subject to the RiskG:
- the activity as a mountain guide;
- the activity as a snow sports instructor outside the area of responsibility of ski lift and cable car operators;
- canyoning;
- river rafting and white water rides;
- bungee jumping.
b. Self-regulation Standards and Specialist Literature
The general wording of the risk activity legislation often proves to be too vague in practice. In the case of a lack of standards, self-regulations in the form of private norms, "guidelines", can be considered as "soft law" and serve as interpretation aids or gap fillers. For example, in the case of the liability of mountain railway companies in federal court case law, the guidelines for the design, operation, and maintenance of snow sports slopes developed by the Swiss Commission for Accident Prevention on Snow Sports Slopes, and the guidelines issued by the Commission on Legal Issues on Snow Sports Slopes of Swiss Cableways served to concretise traffic safety obligations (e.g. BGE 130 III 193 E. 2.3; see also Elsener/Wälchli, para. 7 ff.).
Specialist literature can also provide important insights into the applicable duty of care, provided it is generally recognised. However, not every literary opinion represents the "gold standard"; a recommended procedure may be controversial in the rest of the literature.
It is always necessary to check who is the addressee of the relevant private norm or literature being referred to. According to a ruling by the Military Court, operating aids for amateurs should not be directly applied to designated experts. They are capable of conducting a more complex analysis of the avalanche situation and overriding the operating aid (Ruling MG 7 09 161 of 20.11.2009, section 17.4.5). Or in other words, just because an undertaking is deemed unsuitable for amateurs does not necessarily mean it is unsuitable for experts. This view is specifically considered false and exceedingly dangerous by Vest, as increased special knowledge also comes with increased responsibility (Vest, para. 21). Conversely, the mountain guide is not required to have specific knowledge of snow physics that is not taught during training (Ruling MG 7 09 161 of 20.11.2009, section 17.5.5 ci.). Therefore, in the course of a trial, it is always necessary to investigate what was the level of training at the time of the accident, and to obtain the relevant training materials.
Expert literature and self-regulation standards can limit the discretion of experts (see below, para. 33 ff.) or confirm their views. For example, if it emerges from the technical literature that only spontaneously triggered or remotely triggered snow slabs are alarm signs of a considerable avalanche risk, the mountain guide cannot be accused (contrary to the expert findings) that the deliberately triggered snow slab was to be evaluated accordingly (MG 7 09 161 of 20.11.2009, section 17.5.5 bf).
Not all sports have easily accessible (private) standards or specialist literature that can be used to assess the duties of care. The absence bears the risk for the accused person that the mere fact that an accident has occurred is interpreted as a breach of a duty of care. Where a regulation is lacking, the charge of negligence can also be based on general legal principles such as the general danger principle. According to the Military Court, the duty to observe the avalanche situation certainly arises from the general danger principle (Ruling MG 7 09 161 of 20.11.2009, section 17.4.1). To avoid hasty conclusions in this context, it should be demanded that it is clearly defined what mistakes the accused person has made and what correct course of action would have prevented the accident.
To define the duties of care, the court usually cannot avoid obtaining a professional expertise on the specific accident.
2. Expert Opinion
a. Necessity of an Expert Opinion
It is likely that judges and public prosecutors also engage in winter sports or go hiking in their private lives. They therefore have at least some basic knowledge in this area. Accordingly, the question arises as to when it is necessary to order a court expert opinion.
Prosecutors and courts involve expert persons when they do not possess the special knowledge and skills required to determine or evaluate the facts of the case (Art. 182 StPO). The question of the necessity of an evaluation is to be answered based on an objective standard. Prosecutors and courts may only assume their own expertise where they can have it based on life experience without special professional training (BSK StPO-Heer, Art. 182 N 8). If members of the court or the public prosecutor's office have further specialist knowledge, this specific expertise generally cannot replace an evaluation. Exceptionally, such an approach can come into play with the agreement of the parties. Corresponding findings must be clearly comprehensible for the parties and for further instances and must be able to be questioned (BSK StPO-Heer, Art. 182 N 9).
In the case of mountain sports accidents, the actual determination of the facts often already takes place with the police's investigative actions. Nevertheless, as demonstrated in practice (see above para. 14), the expert opinion also serves to investigate still open factual questions, especially when their determination requires expert knowledge that has not yet been used in depth in the course of police investigations. However, the main purpose of the expert opinion is to evaluate the facts, namely the preparation of the basis for determining whether a breach of duty of care has been committed. It is important that the expert opinion does not answer legal questions itself (for example, whether the legal criteria for negligence are met in the specific case), but presents the facts including professional aspects to the judge in such a way that he can make the legal evaluation. In practice, however, the boundaries can be quite fluid.
b. Demarcation of Judicial Tasks
When an expert person is involved, a demarcation must be made from purely judicial tasks. The application of the law is the task of the court and cannot be delegated. The caution that the mountain guide was obliged to observe ultimately depends on the specific circumstances and his personal circumstances. This is a legal question, the answer to which cannot be delegated to the expert (Decision of the Appeals Chamber in Criminal Matters of the Canton of Bern, BK 15 83 E. 6.6).
The abundance of literature and self-regulatory norms (see above para. 27 ff.) may again necessitate the involvement of an expert in order to find and classify relevant provisions. Therefore, when formulating questions for the expert, inquiries will also be made about literature or private norms and their applicability to the specific case. Accordingly, the expert will also determine if there are no special guidelines (cf. judgement of the High Court of the Canton of Bern, SK 18 12 dated 25.01.2019 E. 18.2 p. 30; no restrictive regulations for roping up teenagers). The expert can thus compile the available literature and the applicable "rules" and show their quality and relevance for the case at hand. Before the requirements for negotiating a path according to the SAC hiking scale (see Vuille, para. 8 ff.) can be matched with the specific case, the path must first be classified by the expert (see e.g. judgement of the High Court of the Canton of Bern, SK 18 12 dated 25.01.2019 E. 13.5 p. 20).
While technical questions can usually be answered objectively by applying relevant literature, it is inevitable that the expert also makes certain value judgments by letting his own experience and willingness to take risks flow into the evaluation (Christen, p. 277). However, this directly touches on the definition of the permissible risk (see following para. 46 ff.), which constitutes a legal question.
c. Search for the Suitable Expert
While the Code of Criminal Procedure provides that the Confederation and the cantons can provide for permanently appointed or official experts for certain areas (Art. 183 para. 2 StPO), neither the Confederation nor the cantons have made use of this competence in the field of mountain sports. It is therefore up to the prosecutor's office or court dealing with the case to find an expert (Christen, p. 272).
Especially from the victim's perspective, the question arises as to whether and how the independence of the expert is ensured. Even more than with medical reports, there is often the impression of proverbial roped parties among the (mountain) athletes, especially in fringe sports, as the number of available experts is small. Sports associations themselves could have a vested interest in the outcome of a criminal trial.
In mountain sports law, a special pool of experts created by the mountain guide association is intended to ensure independence and expertise. The FEB (Expertise in Mountain Accidents) provides suitable experts to the judiciary and insurance companies upon request. The FEB has a network of specialists for all alpine disciplines. The FEB experts are professionals with federal professional certificates and many years of experience in the field of tour guiding and training. The experts receive further training every three years at an event conducted by the FEB, to which people from the judiciary and insurance are also invited (Christen, p. 271 f.).
Such specializations on the part of the experts create trust in the quality and independence and prevent the "slipping" into the answering of legal questions, which are left to the court. The creation of such pools of experts for other sports would be desirable.
d. Multiple Expert Opinions and Private Expert Opinions
If two or more expert opinions with different results have been obtained, the court cannot declare the one more favorable for the accused person as applicable according to the principle of in dubio pro reo. Instead, it must examine without consideration which assessment it wants to follow. This applies analogously to all types of evidence (Federal Supreme Court judgement 144 IV 345 E. 2.2.3.1).
A private expert opinion merely represents a party's assertion (Federal Supreme Court judgement 127 I 73 E. 3 f/bb among many others). It can serve to justify the preparation of an additional expert opinion or to show that an existing court expert opinion is deficient or not conclusive. Often, substantiated objections to court expert opinions can only be made based on the opinion of a private expert (BSK StPO-Heer, Art. 189 N 6 f.; Federal Supreme Court judgement 141 IV 369 E. 6.2.).
In the military criminal proceedings concerning the mountain sports accident on the Jungfrau, the court expert opinion could not only be questioned with the private expert opinion, but the court was convinced by the factual basis in the private expert opinion (Judgement MG 7 09 161 dated 20.11.2009 E. 10.4 and 13.4. and above para. 9).
3. Permissible Risk and Self-Endangerment
According to the principle of permissible risk, a danger to other legal rights that does not exceed the general risk of life cannot be prohibited, but only a certain minimum degree of care and consideration can be demanded (Federal Supreme Court judgement 117 IV 58 E. 2b; Stratenwerth, para. 34 m.w.H.; Laube, para. 11). This concerns the question of which risks are generally to be accepted, and not a reduction of the requirements of care (Federal Supreme Court judgement 117 IV 58 E. 2b). Under the title of self-endangerment, it must be taken into account that informed competent persons are capable of taking risks on their own responsibility and that to this extent the attribution of success to a third party is limited (Stratenwerth, para. 40; Laube, para. 12). These elements are of particular relevance in mountain sports. Although the involvement of a mountain guide to carry out a tour transfers part of the personal responsibility to the guiding person, the "alpine residual risk" remains with the guided person even in this case (Müller, p. 14).
In the process, it should also be recalled or pointed out that legislation has expressly refrained from prohibiting certain risk sports and thus society accepts a certain residual risk. This can help the court and the experts to avoid a hindsight bias. The assessment is a question of law, although a value judgement by the experts involved cannot be entirely prevented (cf. above, para. 38).
In practice, such a residual risk was ultimately accepted in the case of a «sneaky weak layer» in the snow, which led to a scare and subsequently to a roped party accident (judgment MG 7 09 161 of November 20, 2009). The same was true when stumbling on a flat piece, after previously mastering key passages without problems and otherwise there was no reason for inattentiveness (judgment of the High Court of the Canton of Bern, SK 18 12 of January 25, 2019 E. 19 p. 39; cf. also Müller, p. 14 f.).
4. Duties of care of senior decision-makers (organs)
Not only those directly involved in the accident (whether they are guides or leisure sports enthusiasts) can be prosecuted. Also, for senior decision-makers of a commercial provider of guided activities, an accident can have criminal consequences. For example, in the aftermath of the canyon disaster in Wilderswil, the managing directors and board members of the tour provider were convicted of negligent homicide because they had taken insufficient organizational measures to prevent such an event. The actual course of the accident in this case was (retrospectively) undisputed: Due to a violent thunderstorm in the rear Saxet valley, all side streams of the Saxet stream had filled with water, ultimately leading to the deadly meter-high water wave. According to the court, this scenario should have been included in a risk concept. It was sufficient to know the basic danger and the mechanism of the «catchment basin». Added to this were the votes of locals who claimed to have experienced such an event once (for information from locals in the context of tour preparation, see Gerber, p. 21). From the court's perspective, the event was abstractly foreseeable for the upper management level, but not for the guides working in the stream, who could rely on the usual danger signals such as the color of the stream (dirty water) (judgment of the District Court XI Interlaken-Oberhasli P11 00 249 of December 11, 2001).
The criminal accusation of breach of duty of care thus shifts to a higher, preceding level of responsibility. Accordingly, the argumentation in the area of prosecution and defense also changes. It is obvious that the danger of a short circuit is high: The accident has happened; had a risk concept been developed, it could and should have been foreseen, ergo protective measures would have been taken that would have prevented it. Since this accusation is usually an indirect omission offense, particular attention must be paid to causality: Can it be proven with sufficient probability that an action - such as implementing a risk concept - would have actually prevented the accident (for the burden of proof, see above, para. 62)? The hypothetical scenario to be proven by the prosecution contains significantly more components and unknowns in this context than, for example, the actions of the mountain guide working "in the field" in individual cases and their handling of the relevant concept.
In the entry case, for example, it could be argued that the organs of Bikesport AG had not issued a written set of instructions to the tour guides, stipulating that instructions from the participants must always be confirmed. At the same time, it would have to be proven that such written instruction would have prevented the accident, namely that the tour leader would have adhered to the instructions and that the injured party would have followed them.
D. Conclusion on criminal proceedings
A criminal proceeding after a mountain sports accident starts much earlier than is apparent to the legal layman. It is worthwhile to be advised legally from the very beginning and especially to process the facts professionally. Efforts should be made to ensure that an expert is involved by the investigative authorities at an early stage when their own specialist knowledge is lacking. In this context, it would be desirable for the police investigation teams in the exposed cantons to already consist of alpine experts. Expertise should also be present at the court level. The acceptance of (court) expert opinions could be increased if specific expert pools are consistently or exclusively considered, or if there are already specialist judges at the courts.
III. Delineation to civil proceedings
In the event of an accident on a mountain, the injured person, their relatives, or a regressing insurance company can be the plaintiff in a civil proceeding and demand the award of damages and/or satisfaction.
Civil proceedings can be conducted independently of criminal proceedings. They can also run in parallel with them or be preliminary or subsequent. Even if civil claims can be asserted in criminal proceedings in an adhesion manner (Art. 122 StPO), particularly claims for damages are rarely assessed by the criminal court due to the complexity of the damage calculation.
A. Parties to the civil proceedings
If the accident occurred in the context of a commercial sports event, the provider of the activity or the competition organizer will usually be listed as the defendant in the civil proceedings. As these often appear in the form of a legal entity (AG or GmbH), the individual employee is not directly involved in practice. The only exceptions are providers who offer activities commercially as an individual person (or sole proprietorship). The basis of liability in these cases is the contract concluded with the accident victim.
In private sports events, those persons who are considered responsible for the accident are the defendants. The basis for liability is usually an illegal action or omission or favor.
As of January 1, 2022, the position of the injured person has improved in that a direct right to claim exists against the liability insurance of the person causing the damage (Art. 60 para. 1bis VVG). This is particularly advantageous when the person causing the damage does not have sufficient financial resources or behaves uncooperatively.
B. Burden of assertion and denial
The plaintiff has to assert and, if denied by the defendant (and only then), prove the factually relevant facts. Unlike in criminal proceedings, the court only assesses the facts that are made the subject of the proceedings by the parties (Art. 55 para. 1 ZPO). It may not award a party more than they request (principle of disposition, Art. 58 ZPO). In the entry case, the injured party has to assert and prove the circumstances that lead to the assumption of a breach of duty by the tour leader, namely the objective danger of the trail section, the professional duty of the tour leader to instruct the participants to dismount, and the failure to provide this information. If the tour leader does not deny in the statement of defense that he would have been professionally obliged to warn the tour participants, there is no need to provide evidence of this. Therefore, there is no need for a court expert opinion on the question of the professional duties of a tour guide in the specific case.
If a party - usually the plaintiff - fails to prove a certain factual element, they have to bear the consequences of the lack of evidence. However, the defendant has what is known as a denial burden. According to recent Federal Supreme Court case law, this goes so far in certain situations, especially when there is an information gap between the parties, that a secondary burden of presentation must be justified as to why a certain assertion is denied (judgment of the Federal Supreme Court 4A_36/2021 [BGE 148 III 11] of 01.11.2021, unpublished E. 5.1.3 with further references; critical of this Fellmann, p. 37). In the case of a mountain sports accident, an information gap can arise from the superior training or experience of the defendant's involved person or from memory gaps in the injured person. Here too, it is generally not advisable for the defendant to remain exclusively passive.
C. Binding effect of the criminal proceedings
A criminal conviction does not bind the civil judge (Art. 53 OR). In practice, however, at least a factual binding effect can be observed. This is particularly evident in the case of expert opinions. Differences can arise particularly with regard to questions of causal connection or organizational duties.
1. Expert opinions
In civil proceedings, too, the question ultimately arises as to whether a breach of duty can be attributed to the defendant. Here too, the relevant facts are to be answered by an expert. The findings obtained in the possibly preceding criminal proceedings form a decisive basis. An expert opinion already drawn up in the criminal proceedings is not binding for the civil judge, but is of great relevance in practice. An officially obtained expert opinion can be relied upon without the civil court having to commission a new one (on the expert opinion of a social insurer in civil proceedings see BGE 140 III 24 E. 3.3.1). However, special attention must be paid to whether the expert opinion actually answers the questions relevant to civil law.
2. Causal Connection
In the event of a conviction in criminal proceedings, a judgment in favor of the plaintiff in civil proceedings is also likely (Müller, p. 108). Conversely, even in the event of an acquittal in criminal proceedings, a judgment can be issued in favor of the plaintiff in civil proceedings. In civil law, the standard of proof for the causal connection between action or omission and damage is the preponderance of the probability (cf. BGE 133 III 153 E. 3.3). According to the formulation of the Federal Court, this is given when other conceivable possibilities "do not reasonably come into significant consideration". The threshold value is estimated in the literature at 65% to 75% (Berger-Steiner, p. 269; Beck, p. 243; on the whole: Summermatter/Jacober, p. 143). In contrast, criminal law uses the concept of probability bordering on certainty. A degree of probability of 95% is estimated (Summermatter/Jacober, p. 140). In any case, more is required compared to the standard of proof required in civil law. Unlike in civil law, no distinction is made between actions and omissions (Summermatter/Jacober, p. 141).
This means that even if a causality that has been sufficiently established under criminal law is denied, it could still be affirmed under civil law. If, in the entry case, for example, it were established through witness statements that the accident victim had resisted all instructions from the tour guides during the entire tour, the objection would be that the accident victim would also not have followed an instruction regarding the relevant section of the path. A hypothetical causal course must therefore be assessed. While the court in criminal proceedings must be 95% convinced that the accident victim would have followed the specific instruction, the requirement for conviction in civil law is lower. Since an omission is alleged, this evidence must be provided in civil law by the injured party (on the burden of proof in case of omission cf. Summermatter, N 218).
3. Violation of Organizational Duties
It is often argued that so-called organizational duties would lead to more extensive liability in civil law than in criminal law. This assumption is obvious, as the individual accused person is in court in criminal proceedings, whereas in civil proceedings it is usually the provider of the activity or the competition organizer. Upon closer examination, however, the invocation of organizational duties usually does not help much. Because even in civil law, as shown, the connection between (organizational) duty violation and damage must be proven with the necessary degree of probability - which is somewhat lower than in criminal law. Organizational duties are usually defined so abstractly that this proof of causal connection will rarely succeed. If the connection between a violated organizational duty and the event that occurred is so evident, a criminal conviction of the top decision-makers can also be achieved (see above para. 49).
D. Conclusion on Civil Proceedings
In civil proceedings, the parties are solely responsible for gathering evidence and asserting the relevant facts. It is therefore advantageous if they can rely on criminal proceedings that have already been completed.
E. Further Tips from a Practical Perspective
Finally, three further procedural points of interest should be discussed, which regularly form the subject of instruction with the client: Who will be present at the trial? Will I have to go to jail if I am convicted? Who pays for all this?
1. Publicity
Victims involved or accused persons are often uncomfortable with a trial. Dealing with the press is even more difficult in the case of accident events that interest the general public. Hearings before the court of first instance and the court of appeal, as well as the oral opening of judgments and decisions of these courts, are in principle open to the public and thus also to the media (Art. 69 para. 1 and 4 CCP; Art. 54 CCP). The principle of publicity is considered a principle of the rule of law and an essential element of democracy. State activity should be transparent and comprehensible for the persons concerned, but also for the general public (BSK StPO-Saxer/Thurnheer, Art. 69 N 12 ff). Thus, if the media and interested third parties sit in on the hearings and the media try to obtain information or an interview before and after the hearings, the aim is not to expose the persons involved. Nevertheless, the reporting of the media can pose the risk of a so-called prejudgement. In the case of the Saxetbach canyoning accident, for example, a survey of the local population conducted by the daily press revealed that there had already been major storms and floods in the Saxetbach. This calls for a professional approach on the part of the court, but also on the part of the representatives involved. Clients are to be instructed accordingly.
2. Criminal sanctions
Another client concern relates to the possible sanction of a criminal conviction.
If, in connection with a mountain sports accident, the accused person is convicted under criminal law for a negligence offense, he or she is generally not threatened with a prison sentence but with a fine. The fine is imposed depending on the defendant's income and assets, which is why the defendant is also asked about his or her income and assets during the investigation.
The fine is usually imposed on a conditional basis - if the criminal record is previously unremarkable. This means that it does not have to be paid if no further offences are committed during the probationary period. After expiry of the probationary period, the conditionally imposed sentence no longer appears in the private extract from the criminal record (Art. 40 para. 3 in conjunction with 41 Criminal Records Act [StReG]). It is completely removed after fifteen years (Art. 30 para. 2 lit. d StReG). The fine is supplemented by a fine (so-called liaison fine, Art. 42 para. 4 in conjunction with Art. 106 StGB), which must be paid in any case. In addition, the costs of the proceedings, i.e. court costs and lawyers' fees, are paid.
3. Cost bearing
Any legal expenses insurance or, depending on the policy, liability insurance may provide legal protection during the criminal proceedings. This means that they cover the costs of legal representation and the costs of the proceedings, but not the actual penalty (fine or daily allowance) if there is a conviction.
Damages and satisfaction awarded to a victim in criminal or civil proceedings shall be paid by the liability insurance company to the extent that coverage exists.