Ski touring and off-piste skiing (part 1)

Literature

Bartetzko Urs, in: Niggli Marcel Alexander/Wiprächtiger Hans, Basler Kommentar, Strafrecht, 4. Aufl., Basel 2019; Benisowitsch Gregor, Die strafrechtliche Beurteilung von Bergunfällen, Diss. Zürich 1993; Berther Aldo/Wicky Michael: Schneesport Schweiz, Varianten und Touren, Belp 2010; Biefer Oliver, Recht auf Risiko? Wann gilt eine Aktivität als Wagnis?, in: WSL Berichte, Heft 34, Lawinen und Recht, Davos 2015; Bütler Michael, Gletscher im Blickfeld des Rechts, Diss. Zürich 2006; Dan Adrian, Le délit de commission par omission: éléments de droit suisse et comparé, Diss, Genf 2015; Donatsch Andreas/Godenzi Gunhilde/Tag Brigitte, Strafrecht I, Verbrechenslehre, 10. Aufl., Zürich 2022; Elsener Fabio/Wälchli Dominic, Pisten-Skifahren, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Erni Franz, Unfall am Berg: wer wagt, verliert!, in: Klett Barbara (Hrsg.), Haftung am Berg, Zürich 2013, S. 15 ff.; Felber Franziska/Figini Nico, Gleitschirm, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Gerber Andreas, Strafrechtliche Aspekte von Lawinen- und Bergunfällen unter Berücksichtigung der schweizerischen Gerichtspraxis, Diss. Zürich 1979; Harvey Stephan/Rhyner Hansueli/Schweizer Jürg, Lawinen – Verstehen, beurteilen und risikobasiert entscheiden, München, 2022; Harvey Stephan/Scheizer Jürg, Rechtliche Folgen nach Lawinenunfällen – eine statistische Auswertung, in: WSL Bericht, Heft 34, 2015, S. 63 ff.; Heinz Rey/Lorenz Strebel, in: Thomas Geiser/Wolf Stephan, Basler Kommentar, Zivilgesetzbuch II, 6. Aufl., Basel 2019; Kocholl Dominik, Führung und Führer am Berg: Verhältnis zum Bergsportler und "erlaubte" Führungstechniken, in: Klett Barbara (Hrsg.), Haftung am Berg, Zürich 2013, S. 145 ff.; Kuonen Stephanie, Alpinisme, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Mathys Heinz Walter, Anklage und Verteidigung, in: Lawinen und Recht, Davos 1996; Munter Werner, 3x3 Lawinen, Risikomanagement im Wintersport, 6. Aufl., Bozen 2017; Müller Rahel, Haftungsfragen am Berg, Diss. Bern 2016 (zit. Haftungsfragen); Müller Rahel, Vorbemerkungen zu den Sportarten, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar (zit. Bergsportkommentar); Niggli Marcel Alexander/Maeder Stefan, in: Niggli Marcel Alexander/Wiprächtiger Hans, Basler Kommentar, Strafrecht, 4. Aufl., Basel 2019; Niggli Marcel Alexander/Muskens Louis Frédéric, in: Niggli Marcel Alexander/Wiprächtiger Hans, Basler Kommentar, Strafrecht, 4. Aufl., Basel 2019; Peer Carlo, Jagdrecht, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Portner Carlo, Rechtliches aus dem Bergführer-, Skilehrer- und Bergrettungswesen, Haldenstein 1988; Procter Emil et al., Burial duration, depth and air pocket explain avalanche survival patterns in Austria and Switzerland; Resuscitation 2016, 105, S. 173–176; Rudin Andy/Vonlanthen-Heuck Jennifer, in: Abt Thomas et al. (Hrsg.), Kommentar zum Waldgesetz, Zürich 2022; Schneuwly Anne Mirjam, Kitesurfen, in: Schneuwly Anne Mirjam (Hrsg.), Wassersportkommentar; Stiffler Hans-Kaspar, Schweizerisches Schneesportrecht, 3. Aufl., Bern 2002; Trechsel Stefan/Pieth Mark, Schweizerisches Strafgesetzbuch, Praxiskommentar, 4. Aufl., Zürich 2021; Vest Hans, Freispruch der im Bergunfall an der Jungfrau angeklagten militärischen Bergführer – ein Fehlurteil? in: Jusletter vom 27. September 2010; Vuille Miro, Wandern, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Winkler Kurt/Hans-Peter Brehm/Jürg, Haltmeier: Bergsport Winter, Technik/Taktik/Sicherheit, 5. Aufl., Bern, 2021; Winkler Kurt/Schmudlach Günter/Degraeuwe Bart/Techel Frank, On the correlation between the forecast avalanche danger and avalanche risk taken by backcountry skiers in Switzerland, in: Cold Regions Science and Technology, 2021, S. 1 ff.

Materials

Bergnotfälle Schweiz 2022, Zahlen und Auswertungen, Schweizer Alpen-Club SAC; Botschaft zu einem Bundesgesetz über Walderhaltung und Schutz vor Naturereignissen (Waldgesetz, WaG) vom 29. Juni 1988 (BBl 1988 III 173); Bericht der Kommission für Rechtsfragen des Nationalrates zur Parlamentarischen Initiative, Rahmengesetz für kommerziell angebotene Risikoaktivitäten und das Bergführerwesen vom 15. September 2009 (BBl 2009 6013 ff.); Bundesamt für Umwelt (BAFU): Wildruhezonen: Markierungshandbuch, Vollzugshilfe zur einheitlichen Markierung, Bern 2016; Ad-hoc-Kommission Schaden UVG, Empfehlungen zur Anwendung von UVG und UVV Nr. 5/83 Wagnisse vom 10. Oktober 1983, Totalrevision vom 16. Juni 2010, angepasst per 18. November 2016 und 27. Juni 2018; Empfehlungen zur Anwendung von UVG und UVV Nr. 5/83, ad hoc-Kommission Schaden UVG; Fachdokumentation «Schneeschuhwandern – Mehr Sicherheit auf grossem Fuss» von der Beratungsstelle für Unfallverhütung bfu vom November 2020; Erläuterungen zur Verordnung über das Bergführerwesen und Anbieten weiterer Risikoaktivitäten des BASPO (Risikoaktivitätenverordnung; SR 935.911), Version vom 13.08.2019, (zit. Erläuterungen RiskV); Kommentar zur Verordnung über das Bergführerwesen und Anbieten weiterer Risikoaktivitäten (Risikoaktivitätenverordnung, RiskV) des BASPO (zit. Kommentar RiskV); Faltbroschüre "Achtung Lawinen!", in: Kern-Ausbildungsteam «Lawinenprävention Schneesport», 8. Aufl. 2022; Rechtliche Stellung von Tourenleiterinnen und Tourenleitern des SAC; Schweizer Alpen-Club SAC, 2011; Schwierigkeitsskalen des Schweizer Alpen-Clubs SAC pro Bergsportdisziplin, Version September 2012; Richtlinien der Kommission Rechtsfragen Schneesportanlagen von Seilbahnen Schweiz, Die Verkehrssicherungspflichten auf Schneesportanlagen, Aufl. 2019 (zit. SBS-Richtlinien); Schweizerische Kommission für Unfallverhütung auf Schneesportabfahrten (SKUS), Schneeportanlagen: Richtlinien für Anlage, Betrieb und Unterhalt, Aufl. 2022 (zit. SKUS-Richtlinien); SwissSnowsports Association, Academy, Nr. 38, Belp 2022; SwissSnowsports Association, Academy, Nr. 33, Belp 2019; Swiss Snowsports Association, Academy, Nr. 24, Belp 2015; SwissSnowsports Association, Academy, Backcountry, Nr. 14, Belp 2009; WSL-Berichte, Schnee und Lawinen in den Schweizer Alpen, Hydrologisches Jahr 2021/2022, Heft 128, Davos 2023.

I. General

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Snow sports activities outside of secured ski slopes - the "free" snow sports terrain - have been experiencing a real boom for years. As beautiful as it is to venture into freshly snow-covered terrain with various snow sports equipment, such activities inevitably entail increased dangers on the one hand and also lead to an increased burden on nature on the other hand. In the years 2018 - 2022, an annual average of 32 people died in Switzerland on ski tours and off-piste descents. Of these, nearly 20, thus almost two-thirds of the fatalities, are due to avalanches (cf. SAC Mountain Emergency Statistics 2022). This corresponds to the 20-year average of 21 avalanche fatalities (cf. statistics of fatal avalanche accidents of the last 20 years by the WSL Institute for Snow and Avalanche Research Davos, pp. 40 f.). The remaining fatalities are due to falls, crevasse falls, cornice breaks, or ice/rockfall. Currently, crevasse falls are being increasingly observed, not least due to meteorological changes. Thus, in 2022, nearly twice as many crevasse falls were recorded compared to the 10-year average, with 70 affected individuals. Of these, 6 crevasse falls resulted in fatalities, representing more than a tripling (cf. SAC Mountain Emergency Statistics 2022).

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The aim of this contribution is to provide an overview of the legal aspects of snow sports activities outside of secured ski slopes, i.e., in the so-called "free" snow sports terrain. While this "Part 1" focuses on criminal and general public law aspects in addition to the introductory remarks, "Part 2" focuses on private law issues. For activities on ski slopes, the article "Piste Skiing" is referred to (see Elsener/Wälchli, passim).

A. Definitions

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The forms of snow sports activities in the "free" snow sports terrain and thus outside of ski slopes are diverse today. One can primarily think of the classic touring skis, telemark skis from the same family, or snowboards. Over the years, new activities have emerged due to technological progress. Notably, there is "speed flying", which combines paragliding and skiing (see Felber/Figini, para. 10), or "snow kiting", where kiters ride over snow-covered terrain or frozen bodies of water with skis or a snowboard (see Schneuwly, Kitesurfing, paras. 2 and 24). Due to the variety of these snow sports activities, there is no uniform terminology in Switzerland. There is specifically talk of ski touring, piste ski touring, high-altitude ski tours, ski mountaineering, freeriding, off-piste skiing, back-country, off-piste, ski mountaineering, heli-skiing, etc. Consequently, the terms as they are typically used in Switzerland for the training of the relevant professional groups and which have partially found their way into law, are initially to be determined.

1. Tours with Snow Sports Equipment (Snow Sports Tours)

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"Tours" are understood to be ascents with touring skis, splitboards, snowshoes, or similar sports equipment, combined with a descent (Explanations RiskV, p. 3). With pure snowshoe tours, naturally, there is no descent, but a descent. In terms of time, all snow sports tours can last more or less long - from a few hours to several days. On multi-day tours, overnight stays are typically in mountain huts, hotels, tents, or a bivouac (overnight stay without a tent in the open air, in an igloo or in a snow cave, see Information Sheet Swiss Alpine Club "Camping and Bivouacking in the Swiss Mountains"). This can be relevant insofar as the Package Travel Act can be applied at points for such organized "packages" (tour and overnight stay) (see Art. 1 Package Travel Act [Federal Act on Package Travel of 18 June 1993, SR 944.3]; Müller, Liability issues, para. 298, 333 f., 339 ff.; Nosetti, para. 221 ff.; Wiede, Travel law, Zurich, 2014, para. 489 ff.).

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The term "snow sports tours" in the sense of a generic term describes all tours that are undertaken using snow sports equipment. This article focuses on ski tours (including variants), although the explanations generally also apply to tours with other snow sports equipment.

a. Ski Tour

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Touring skis with climbing skins enable a vertical ascent with a descent. Ski tours can be undertaken both in the "free" snow sports terrain and within the secured snow sports terrain, i.e., on ski slopes.

b. Telemark Tour

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Telemark skis with climbing skins also enable vertical ascents with descents. They differ from touring skis mainly in that during the descent, not the entire boot is fixed in the binding, but only the tip of the boot, which leads to a special descent technique. Telemark tours can also be undertaken both in the "free" snow sports terrain and within the secured snow sports terrain.

c. Snowboard Tour

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While snowboarders had to laboriously tackle vertical ascents with snowshoes and a snowboard strapped to their backpacks until a few years ago, they now regularly use a "splitboard". This length-dividable snowboard allows for a relatively comfortable ascent with two "skis" thanks to a sophisticated system and climbing skins, and after assembling both skis into a "board", a descent using a snowboard. Snowboard tours, with snowshoes or a splitboard, are also practiced both in the "free" snow sports terrain and within the secured snow sports terrain.

d. Snowshoe Tour

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Tours are also undertaken with snowshoes. The majority of snowshoers move within the secured snow sports terrain on signposted snowshoe trails. However, snowshoe tours can also be undertaken in the "free" terrain (see also the technical documentation "Snowshoe Routes - More Safety on Big Feet" from the Swiss Council for Accident Prevention bfu).

2. High Tours with Snow Sports Equipment (Winter)

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In high tours, whether in winter or summer, glaciers and thus alpine high mountains are typically entered. In addition, the last stretch to a mountain summit is regularly mastered on foot after an ascent, i.e., without snow sports equipment and using alpine technique (use of rope security, ice axe, and crampons). While in pre-alpine terrain the dangers of snow sports tours are mainly limited to avalanches, additional associated dangers, in particular the risk of falling or crevasse falls and rockfall or ice breakage, must be considered during high alpine tours.

3. Off-piste with Snow Sports Equipment (Freeriding)

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Off-piste descents are considered to be those that are accessible by cable cars and are carried out with snow sports equipment, but lie outside the area of responsibility of the operators of ski lift and cable car facilities (see legal definition of Art. 3 para. 2 of the RiskV). The term "freeriding" is also used for this in new German. Characteristic for off-piste descents is the use of ski lift or cable car facilities with possibly a short foot ascent to the starting point of the descent, without however - and in contrast to tours - using an ascent aid. Off-piste descents then also end again in the developed (ski) area, so that there is no need for another ascent using ascent aids (Explanations RiskV, p. 4; Harvey/Rhyner/Schweizer, p. 286).

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The distinction between off-piste descents and snow sports tours is particularly important for the competence regulation of commercially offering such activities (see below para. 17 f.).

4. Unsecured vs Secured Snow Sports Terrain

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Due to liability issues, it is strictly necessary to distinguish between snow sports terrain within and outside the area of responsibility of the operators of ski lift and cable car facilities. For the former area, the mountain railway operators have a duty to ensure safety (cf. Elsener/Wälchli, para. 26 ff.). In this article, the areas outside the responsibility of mountain railway operators are relevant. This so-called "unsecured" snow sports terrain is located off the marked slopes (marked blue, red or black) and descents (marked yellow) and is neither secured against alpine dangers (avalanche and fall hazards) nor controlled (cf. also Federal Court decision 6B_403/2016 of 28 November 2017 E. 3.2.2). This "unsecured" snow sports terrain includes in particular off-piste descents and the so-called "wild slopes". The latter include frequently travelled areas between ski slopes that are used as shortcuts or connections and thus acquire the character of slopes (cf. para. 5 ff., 11, 34 and 35 SKUS guidelines as well as para. 8, 42-49, 53, 176 SBS guidelines). Negatively put, all "unsecured" snow sports terrain is not provided to snow sports participants as marked snow sports surfaces and touches the area more than 2 meters beyond the edge of the slopes (SKUS guidelines, para. 23 f.; SBS guidelines, para. 107).

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The distinction between the "unsecured" snow sports terrain and that within the responsibility of mountain railway operators is of extraordinary importance. Snow sports activities in the "unsecured" snow sports terrain are at one's own risk and generally involve personal responsibility (cf. SKUS guidelines, para. 3 and 35; SBS guidelines, para. 122 f., 45, 182; BGE 115 IV 189 E. 3 b).

5. Heliskiing

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Heliskiing refers to the transportation of snow sports enthusiasts by helicopter, or less commonly by airplane, to a legally clearly defined mountain landing site as the starting point for a subsequent snow sports descent in - whenever possible - untracked slopes. This snow sports activity is usually practiced in "unsecured" snow sports terrain (cf. para. 15, II. B.4 below).

B. Actors

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The actors in the field of snow sports activities in the "unsecured" terrain are diverse. Such activities can be undertaken with professionals, within a (sports) club or circle of friends, but also as part of the military.

1. Professional Actors

a. Mountain Guides

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Mountain guides are individuals who have obtained the federal professional certificate based on a prescribed training and professional examination (Art. 4 para. 1 lit. a RiskG). They are entitled to guide guests for a fee in mountainous or rocky terrain, where there is danger of avalanches, falls/slides, and rock/ice fall. This activity generally requires a permit and entitles the holder to perform all snow sports activities covered by the Risk Act without restrictions (Art. 3 RisG and Art. 4 para. 1 in conjunction with Art. 3 para. 1 lit. a–h RiskV). Mountain guide aspirants are allowed to lead activities requiring a permit, provided that these are carried out under the direct or indirect supervision and co-responsibility of a mountain guide (Art. 1 lit. a in conjunction with Art. 5 RiskV). These practical guiding experiences are then also mandatory to obtain the professional certificate.

b. Snow Sports Instructors

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Snow sports instructors are individuals who have obtained the federal professional certificate based on a prescribed training and professional examination (Art. 5 para. 1 lit. a RiskG). In addition to their (main) activity of professional snow sports instruction in various disciplines (skiing, snowboarding, telemark, and cross-country skiing) within the secured ski piste area, they are also entitled with the corresponding permit to guide guests for a fee in the "unsecured" snow sports terrain. Unlike mountain guides, this activity is limited to ski and snowboard tours up to a maximum difficulty level of "not very difficult" according to the SAC ski tour scale. They are also entitled to lead off-piste descents up to a maximum difficulty of "difficult", provided there is no risk of falling. Finally, they can also undertake demanding snowshoe tours up to the difficulty level "WT3" according to the SAC snowshoe tour scale (cf. Art. 3 RiskG and Art. 7 para. 1 in conjunction with Art. 3 para. 1 lit. c–e RiskV).

Totally prohibited - and therefore reserved for mountain guides - are ski tours and off-piste descents exceeding the aforementioned difficulty levels and those requiring the use of glaciers or technical equipment such as ice axes, crampons, or ropes for safety purposes (Art. 7 para. 1 RiskV). Glacier descents such as the one from Diavolezza to Morteratsch, however, are permitted for snow sports instructors, provided they are open by the operators of ski lift and cable car facilities and thus represent descents (cf. section A, para. 4 above). Finally, commercial guiding as part of heliskiing is also factually reserved for mountain guides. On the one hand, most suitable mountain landing sites for this purpose are located in high alpine mountains and thus on glaciers. On the other hand, helicopter companies regularly stipulate the accompaniment of a mountain guide.

c. Hiking Guides

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Hiking guides are individuals who have obtained the federal professional certificate based on a prescribed training and professional examination (Art. 8 RiskV, see also Vuille, Rz 15). They are authorized to (professionally) guide clients on snowshoe tours up to difficulty level WT3 according to the SAC snowshoe tour scale, provided that no glaciers are crossed or technical equipment (ice axes, crampons or ropes) need to be used to ensure the safety of those guided. Snowshoe tours from difficulty level WT4 according to the SAC snowshoe tour scale are reserved for mountain guides (Explanation RiskV, p. 11).

2. Non-professional Actors

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Due to the lack of professional or commercial activity, snow sports activities within non-profit organizations such as the SAC, other sports clubs and associations, educational institutions, and the state sports promotion program "Youth+Sports" (hereafter: J+S) are not subject to the RiskG. Accordingly, they do not require a permit. The legislature assumes that internal structures and guidelines in these organizations sufficiently guarantee the safety of the participants (Art. 2 para. 2 RiskV).

a. Tour Leaders

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SAC tour leaders, tour leaders of sports clubs and associations, as well as J+S leaders are trained as such. They are designated to lead and teach groups and are also qualified to do so based on their completed training. In the case of the SAC, the central association conducts tour leader courses in various disciplines for the tour leaders. For leading groups in the pre-alpine terrain with skis, snowboards or snowshoes, the central association offers the Tour Leader Course Winter 1 and for ski high tours in the high mountains the Tour Leader Course Winter 2. At the same time, it obliges its sections to only use trained tour leaders (see also the regulation of the SAC central association "Training and Continuing Education Obligation SAC Tour Leaders").

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Due to civil law association autonomy, it is largely up to the individual SAC sections, but also other sports clubs and associations, to establish internal competence regulations. Most SAC sections require an (internal) permit for the advertised snow sports tours. Within the framework of the legally standardized sports promotion program J+S, the execution of ski tours necessarily requires a J+S ski tour leader course, with at least one leader having the additional qualification of "Course Leader". All ski tours also require a permit (Art. 4 para. 1 lit. a, Art. 20 and Appendix 3 No. 3 of the Ordinance of the Federal Office of Sport on "Youth+Sports" of December 1, 2022, SR 415.011.2).

b. "De facto" Leaders and Danger Communities

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The question of a possible "de facto" leadership or danger community arises primarily when snow sports tours, especially within the family or circle of friends, are undertaken without being led by professional actors.

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"De facto" leaders are individuals who, due to their alpine experience and mountaineering skills, persuade less experienced individuals to accompany them into the mountains, make the necessary decisions, and thus effectively, i.e., de facto, assume the role of leadership. The essential characteristic is that the people thus "led" relinquish their own freedom of decision and entrust the care for their safety to the de facto leader, creating a certain subordinate relationship (see BGE 83 IV 9 E. 1; BGE 100 IV 210 E. 2b; Stiffler, Swiss Snow Sports Law, para. 750 f., p. 182; Practical Commentary StGB Trechsel/Pateh-Moghadam, Art. 11 N 13; Kocholl, p. 145 f. and 150; Müller, Liability Issues, para. 244 f., p.86; Gerber, p. 135 f. and 146 f.).

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The so-called danger community, in which roughly equally strong and experienced snow sports enthusiasts join together to engage in their risky activity collectively, does not recognize de facto leadership. Since no one in such a constellation exerts an actual leadership role, and due to a lack of knowledge and experience advantage, cannot exert it, everyone must assess any potential dangers equally and take their own responsibility. Because of the non-criminal, self-responsible self-endangerment or self-killing, in the case of an accident, no one is responsible as a de facto leader (see decision on appeal of the Cantonal Court of Graubünden BK 07 27 of August 16, 2007, E. 4b; Stiffler, Swiss Snow Sports Law, para. 751, p. 182; Gerber, p. 110 f. and 137 f.; Müller, Liability Issues, para. 214, p.74).

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The often-heard statement in professional circles that in the context of groups of friends or family, the most experienced person or the one with the highest training automatically assumes the role of a "de facto leader" and is liable, proves to be incorrect in its absoluteness. In order for the de facto leadership to play this role, it is absolutely necessary to have a previous explicit or tacit assumption of (leadership) responsibility (see also BGE 141 IV 249, E. 1.4.1 with further references; Dan, paras. 202 and 256 ff.). Due to the possibility of tacitly assuming responsibility, it is advisable to clarify the distribution of roles before setting off on a tour.

3. Military Leaders

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The Swiss Army is naturally hierarchically organized and structurally divided into units at different levels (ascending: troop, group, platoon, unit such as company, troop body such as battalion, and the large unit such as brigade). Each unit is led by a superior person who is responsible for all members of the army of this unit (Art. 18 f. Army Service Regulations of June 22, 1994, SR 510.107.0 [DRA]). The superior person always has to care for the well-being and protection of his subordinates and not to expose them unnecessarily to risks and dangers. When preparing their decisions, they can involve their subordinates, but they alone are responsible for these (Art. 12 DRA). The subordinates, in turn, are obligated to obey (Art. 21 DRA).

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Military leaders in snow sports are regularly civilian-trained mountain guides or specially trained members of the army. The latter group includes, in particular, mountain specialists, who are specifically trained for winter and summer (high) mountain areas by the Army's Mountain Service Competence Centre in Andermatt and deployed for this purpose.

II. Public law regulations

A. Principle of free access to nature

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In Switzerland, there is a fundamental right to free access to nature. The relevant legal bases are found in the Civil Code and the Federal Law on Forests of October 4, 1991 (Forest Law, SR 921.0). Art. 699 para. 1 ZGB grants a general right to access forests and pastures and was, until the Forest Law came into effect, the only legal basis for this access (Commentary on the Forest Law Rudin/Vonlanthen-Heuck, Commentary Art. 14 N 1). The right to access the forest that now flows from Art. 14 para. 1 WaG not only includes walking into the forest, but also traveling through the forest on skis or other snow sports equipment, both on forest roads and in the rest of the forest (BSK ZGB II-Rey/Strebel, Art. 699 N 13). The right to access land that is unsuitable for cultivation, such as rocks, firn, and glaciers in the sense of Art. 644 ZGB, can be derived per analogiam from Art. 699 ZGB according to jurisprudence and doctrine (BGE 141 III 195, E. 2.6; Bütler, S. 28 and 54 ff.).

B. Restrictions on access to nature

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Despite the basic principle of free access to nature, the legislator provides for restrictions for snow sports enthusiasts to protect and preserve plants and (wild) animals - especially for the sensitive area below the tree line in winter. In addition to restrictions directly from the aforementioned legal provisions (Art. 14 para. 2 WaG and Art. 699 para. 1 ZGB), the restrictions from federal and cantonal hunting legislation play a particularly large practical role for snow sports enthusiasts, in addition to those of nature and heritage protection.

1. Federal hunting prohibition areas (wildlife protection areas)

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According to Art. 11 para. 2 of the Federal Law on Hunting and the Protection of Wild Mammals and Birds of June 20, 1986 (Hunting Law, SR 922.0), the Federal Council, in agreement with the cantons, designates federal hunting prohibition areas and issues the protection provisions for them (Art. 11 para. 6 sentence 1 JSG). These aim, on the one hand, to protect and preserve rare and endangered wild mammals and birds and their habitats. On the other hand, they aim to preserve healthy populations of huntable species that are adapted to local conditions (Art. 1 of the Ordinance on Federal Hunting Prohibition Areas of September 30, 1991 [VEJ, SR 922.31]). At present, there are 42 hunting prohibition areas nationwide, which, according to Art. 2 VEJ, are to be listed in their Annex 1 and included in the Federal Inventory (Peer, para. 15 f.).

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In these hunting prohibition areas, it is forbidden to ski outside of marked slopes, routes, and trails. Furthermore, dogs - with the exception of working dogs in agriculture - must be kept on a leash (Art. 5 para. 1 lit. c and g VEJ). Violations can be punished with imprisonment or a fine or a monetary penalty, and negligent commission is also punishable (see offense of Art. 17 para. 1 lit. f as well as infraction of Art. 18 para. 1 lit. d and e JSG). For snow sports enthusiasts, the infraction is of practical relevance, specifically the prohibition to enter or drive in protection zones outside the designated routes and paths, otherwise fines of CHF 150.00 can be imposed (Art. 18 para. 1 lit. e and para. 3 JSG, Art. 4^ter JSV as well as Art. 1 lit. b in conjunction with Annex 2 of the Federal Ordinance on Fines of January 16, 2019 [OBV, SR 314.11]). The cantons are responsible for prosecuting these offenses (Art. 21 para. 1 JSG).

2. Cantonal hunting prohibition areas (wildlife protection areas) and cantonal / municipal wildlife rest zones

a. Cantonal level

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The cantons themselves can designate additional hunting prohibition areas (Art. 11 para. 4 JSG). Furthermore, the cantons can designate so-called wildlife rest zones and mark the routes and paths allowed for use therein, insofar as it is necessary for the sufficient protection of wild mammals and birds from disturbances by recreational activities and tourism (Art. 4^ter of the Ordinance on Hunting and the Protection of Wild Mammals and Birds of February 29, 1988 [Hunting Ordinance, SR 922.01]).

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Wildlife rest zones are important areas for mammals and birds, where the needs of the wildlife take precedence. According to the hunting law, they serve to avoid excessive disturbance as a response to increasing recreational use (Art. 7 para. 4 of the JSG). Wildlife rest zones may not or only limitedly be used for recreational activities during certain seasons (for example, winter, breeding, and setting time) or in individual cases all year round. Here, a distinction must be made between legally binding and recommended wildlife rest zones. Legally binding wildlife rest zones are designated through the ordinary legislative process and codified, for example, in cantonal hunting law or in municipal zoning planning. Violations against legally binding wildlife rest zones can be prosecuted under criminal law. In contrast, recommended wildlife rest zones are those that have not been enacted legislatively. The pursued goal here is to educate and sensitize snow sports enthusiasts through emotional appeal, thus encouraging them to be considerate. In the absence of a legal basis, recommended wildlife rest zones can neither be enforced nor sanctioned. Therefore, in the author's view, the effectiveness of such recommended wildlife rest zones is questionable, especially since recent events related to the Corona pandemic have shown that the recommendation to voluntarily wear face masks only had limited effect.

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It should be noted that the cantons use different terminologies for the designation of wildlife rest zones. Both the canton of Bern and the canton of Graubünden only speak of "wildlife protection areas" in their cantonal legislation, even though they also regulate "wildlife rest zones" in the sense understood above (see for the canton of Bern: Art. 2 of the Ordinance on Wildlife Protection [WTSchV, BSG 922.63], Canton Graubünden: Art. 27 para. 2 and Art. 28 Cantonal Hunting Act, SR 740.000).

b. Municipal level

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In certain cantons, the right to designate wildlife rest zones is transferred to the municipalities. For example, the canton of Graubünden allows affected municipalities to impose local and temporal access restrictions if disturbances in wildlife refuge areas exceed the customary level and thereby affect the life and wellbeing of the wildlife (Art. 27 para. 2 KJG). The municipality of Pontresina, for example, prohibits under penalty (fine of CHF 200.00) any snow sports activities in the forest and wildlife protection zones outside of marked or signposted paths and slopes/tracks from December 15 to April 15 (Art. 92 Building Law and Art. 2n Ordinance on Fines of the Municipality of Pontresina). Also in the canton of Bern, the municipalities can enact wildlife rest zones (Art. 2 para. 2 lit. e WTSchV) and in case of violation impose fines of CHF 150.00 (Art. 1 in conjunction with Annex 1 para. 6 nos. 29 and 29a of the cantonal ordinance on fines of September 18, 2022, BSG 324.111).

c. Case law

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Court decisions in this area are rather scarce. This can be explained on the one hand by the fact that criminal complaints, for example by gamekeepers, are rather rare, as offending snow sports enthusiasts must practically be caught in flagrante for reasons of evidence. On the other hand, the fact that the violations are only misdemeanors certainly also contributes to this.

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In one of the few decisions, the Federal Supreme Court ultimately confirmed the legality of a fine of CHF 100.00 imposed on a snow sports instructor for riding in a wildlife rest zone in Laax GR, which was reported by a gamekeeper (Federal Supreme Court 6B_13/2013 of 5 February 2013, E. 1 regarding report by gamekeeper, E. 3 regarding justification and confirmation of the fine).

3. Night Tours

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There are no specific legal provisions for the increasingly popular tours at night, especially during full moon. Rather, the general rules established for hunting prohibition areas and wildlife rest zones apply. Nonetheless, snow sports enthusiasts should be aware that many wild animals are particularly sensitive to disturbances at dusk and at night. This is additionally supported by the fact that, with the possible exception of full moon tours, snow sports enthusiasts use (out of necessity) headlamps.

4. Heliskiing

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Heliskiing is of particular interest in the Swiss Alps, not least because it is completely banned in our neighbouring countries France (art. L363-1 du Code de l’environnement) and Germany, and is only allowed in the Austrian state of Vorarlberg.

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The Federal Law on Aviation of December 21, 1948 (Luftfahrgesetz, LFG SR 748.0) is relevant for the transport of snow sports enthusiasts in Swiss airspace by aircraft. In the context of heliskiing, it is particularly important to note that landings may only be made at mountain landing sites designated by the Federal Office of Civil Aviation (BAZL). Mountain landing sites are forty landing sites outside airports over 1'100 m.a.s.l., which may be used for passenger transport and tourism purposes (Art. 8 LFG and Art. 2 lit. r in connection with Art. 54 of the Ordinance on Aviation Infrastructure of November 23, 1994, VIL, SR 748.131.1). The list of mountain landing sites approved by the BAZL is published in the aviation publication (see «Visual flight rules Manuel Switzerland», title 3-3-1).

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In the field of snow sports, illegal helicopter landings in the mountains for the purpose of heliskiing are of practical relevance in legal terms. Landing outside of official mountain landing sites constitutes a misdemeanour punishable by a fine of up to CHF 20,000.00 (Art. 91 para. 1 lit. a in conjunction with Art. 8 LFG). The Federal Office of Civil Aviation (BAZL) is responsible for prosecuting such offences according to the procedural provisions of the Administrative Criminal Law Act (Art. 98 para. 2 LFG). In addition, administrative measures (revocation of permits and licences) can be ordered in the event of a violation, regardless of any criminal proceedings - as in road traffic law (Art. 92 ff. LFG).

5. Organization of Ski Touring Races

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The staging of large (sporting) events in the forest and/or in federal hunting ban areas requires a cantonal permit and is only permissible if the conservation objectives are not compromised (Art. 14 para. 2 lit. b WaG or Art. 5 para. 2 VEJ).

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Only recently, the Canton Court of Valais upheld a complaint filed by environmental protection associations against a ski touring race permitted by the canton and leading through the federal hunting ban area "Val Ferret Combe de l’A", so that the race organizers had to alter the route (see press release from one of the complainants).

6. Tools for Snow Sports Enthusiasts

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To make hunting ban areas and wildlife rest zones recognizable to snow sports enthusiasts, the legislator provides for two measures (cf. Art. 7 VEJ and Art. 4^ter Hunting Ordinance). On one hand, the Federal Office of Topography (Swisstopo) is to mark these zones and the routes allowed for use within them on national maps with snow sports themes. These snow sports maps are available on the internet (https://map.geo.admin.ch) or via applications (e.g. "White Risk" and "swisstopo") on mobile phones, and they are highly suitable tools for the planning phase of tours. The hunting ban areas and legally binding wildlife rest zones are colored red, and the recommended wildlife rest zones are yellow. On the other hand, the cantons mark these protected zones directly in the field, usually in the form of boards or elastic barrier tapes. In addition, there are also cantonal websites, such as wildruhe.gr.ch, which provide information about existing regulations and designated wildlife rest zones. The mountain landing sites approved by the FOCA can also be found on these national maps.

III. Criminal Law

A. General

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In Switzerland, in relation to snow sports accidents, which also include avalanches, there are no specific criminal offenses, unlike in Italy, for example, where triggering an avalanche constitutes an explicit crime (see Art. 426 and Art. 449 Codice Penale). The Risk Act (RiskG) only criminalizes the offering of snow sports activities without the necessary permission (Art. 15 Abs. 1 lit. b RiskG). Thus, the RiskG primarily serves as a licensing law for quality assurance. The key legal source for assessing the criminal consequences of snow sports accidents is therefore the Swiss Penal Code (hereinafter: StGB).

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The task of the criminal authorities (prosecutors and courts) in the case of alpine accidents is to review human decisions, which carry residual risks, from a legal perspective. This means that in the case of a snow sports accident, not always one or more persons are held accountable. A criminal conviction always requires misconduct. The vast majority of investigated avalanche accidents, therefore, end without legal consequences (see, for this purpose, Harvey/Schweizer, Legal Consequences After Avalanche Accidents - A Statistical Evaluation, p. 63 et seq.).

1. Scope of the Penal Code / Jurisdiction

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The "free" snow sports terrain is not a law-free space, because the StGB, based on the principle of territoriality, applies to all offenses (crimes, misdemeanors, and infractions) committed in Switzerland (Art. 3 Abs. 1 and Art. 104 StGB, see also Benisowitsch, p. 62, especially Fn. 6). According to the ubiquity principle in Art. 8 StGB and Art. 31 Abs. 1 StPO, the application of the StGB and the jurisdiction of Swiss authorities are sufficient if the place of action (place of execution or neglect of duty) or the place of success (place of success) is in Switzerland (see also BSK StPO-Bartetzko, Art. 31 N 10). This question arises especially in border-near touring terrain, when snow sports enthusiasts, for example, have accidents on ski tours in border areas (Monte-Rosa region, Silvretta, Bernina, Trient) or trigger avalanches in multinational ski areas (Zermatt/Cervinia, Samnaun/Ischgl, Portes du Soleil). Not covered by the scope of the StGB are minors, persons subject to juvenile criminal law, and adults subject to military criminal law (Art. 9 StGB).

2. Opening of a Criminal Investigation

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Snow sports accidents in the "free" snow sports terrain, particularly those involving avalanches, often lead to severe consequences. In more than 90% of avalanche accidents, snow sports participants trigger "their" (slab) avalanche themselves (Harvey/Rhyner/Schweizer, p. 47), meaning that these incidents are often not the result of fate or force majeure. When such accidents result in deaths or serious injuries, public prosecutors are obliged, due to the legal obligation to prosecute, to open a criminal investigation (possibly against unknown persons) to clarify any potentially punishable behaviors (Art. 7 StPO). They are regularly informed about this by the police (Art. 307 Abs. 1 and Art. 253 StPO). Because the extent and any criminal responsibilities (fault of others) are unclear at the beginning of an avalanche accident involving personal injury, it is necessary for the public prosecutor's office to quickly establish the facts. This should preferably be carried out by a police force trained in alpine conditions. It is also recommended to commission a knowledgeable person to assess the situation on site, in view of a potential avalanche report, as the (snow cover) conditions can change rapidly due to weather (precipitation, wind, temperatures, radiation). An inspection by the management of the proceedings is also recommended. Finally, it should be pointed out that by law, the criminal prosecution authorities must investigate both incriminating and exonerating circumstances during the criminal investigation (Art. 6 StPO).

B. Specifics

1. Preliminary Remark

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In the field of snow sports, in practice, one mainly deals with negligent offenses against body and life resulting from snow sports accidents (see also Benisowitsch, p. 71). The textbook example, where a married couple embarks on a mountain/ski tour together and one spouse intentionally, i.e., with the intention to kill, pushes the other off the ridge, is likely to be found predominantly in textbooks. The punishability of the negligent offense arises from the impairment of other people's legal interests, which is caused by the fact that the perpetrator did not apply the care required of them, and therefore must bear the responsibility for the resulting outcome. However, the negligent offense only exists in the cases provided by law (see Art. 12 Abs. 1 StGB).

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Snow sports participants generally carry out their activities in the "free" snow sports terrain on their own responsibility and at their own risk. Therefore, from a criminal law perspective, they can generally endanger or kill themselves without committing a crime (see also BGE 134 IV 149, E. 4.5). For example, snow sports participants may freely choose to enter and traverse slopes that are at risk of avalanches, as long as they exclusively put themselves in danger. The question of criminal liability primarily arises when other people's legal interests are affected, especially in "guided" tours by named mountain guides, snow sports instructors, tour leaders, military leaders, and "de facto" leaders. In such cases, a fault of others must be examined, because in addition to the prohibition of harm, leaders have the duty to actively protect the guests or participants from alpine dangers. Most fatal mountain accidents (winter and summer) occur on private, i.e., unorganized and unguided, tours. In the years 2018 - 2022, 81% of persons died on private tours in mountain accidents in Switzerland (see SAC mountain emergency statistics 2022).

2. The Negligent Offense in General

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According to Art. 12 Abs. 3 StGB, a person commits a crime or offense (or also an infraction, see Art. 104 StGB) negligently if they fail to consider the consequence of their behavior due to negligent disregard of duty, or if they fail to take it into account. The negligence is duty-related if the perpetrator fails to observe the caution required by the circumstances and their personal situation. Liability due to negligence consists of the following essential characteristics:

• Unintentional causing of the offense's success;
• Predictability of the sequence of events leading to success;
• Violation of the duty of care by a survivor;
• Preventability of the offense's success.

a. Unintentional Causing of the Offense's Success

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The perpetrator must unintentionally cause (or contribute to) the realization of the statutory outcome through their action, which requires a natural causal relationship - in the case of omissions, a hypothetical one - between behavior and the occurrence of the outcome (Donatsch/Godenzi/Tag, p. 347 f.). This question is to be evaluated based on all known facts, even those known retrospectively, using principles of logic and scientific knowledge (Donatsch/Godenzi/Tag, p. 353 f.). In the case of avalanches, this usually requires referring to an avalanche expert's report.

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The offense can be committed either by an act or by a breach of duty to act. The latter, however, only if there is a legal duty (so-called guarantor position) and the possibility to perform the omitted action (Art. 11 Abs. 1 and 3 StGB). This duty to act arises on the basis of the law, a contract, a voluntarily assumed community of danger, or the creation of a danger (Art. 11 Abs. 2 StGB). In the legal assessment of avalanches, omissions are commonly assumed in practice, even though active offenses would be present dogmatically. In the case of a ski touring group led by a mountain guide, for instance, the alleged action usually consists in that the ski touring group was recklessly led into the avalanche-prone slope. The fact that the leader fails to abandon a ski tour due to avalanche danger is not a point of reference for an omission, but merely the flip side of continuing the tour and thus acting (Mathys, p. 86 f.). It is therefore easily overlooked that every allegation of negligence involves an omission, namely, the neglect of a duty of care (Praxiskommentar StGB-Trechsel/Fateh-Moghadam, Art. 11 N 6). However, this does not yet conclude an (untrue) offense of omission, because according to the principle of subsidiarity recognized in doctrine and jurisprudence, the accusation is primarily to be understood as an act as long as there is a legally causal action (BSK-Niggli/Muskens, Art. 11 N 53; Praxiskommentar StGB-Trechsel/Fateh-Moghadam, Art. 11 N 6).

d. Avoidability

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For liability due to negligence, it is required that the resulting outcome can, with high probability, be traced back to the perpetrator's negligent behavior (Federal Supreme Court 135 IV 56 E. 5.1). Here, a hypothetical causal sequence is examined and it is checked whether the outcome would have been avoided with proper behavior (Practical Commentary on StGB-Trechsel/Fateh-Moghadam, Art. 12 N 39). If the injury outcome would have occurred even with proper behavior, negligence is ruled out due to a lack of causal connection to the breach of duty. This question is addressed from an ex-post perspective, contrary to the question of the breach of duty of care, meaning that all subsequent insights should be considered (Donatsch/Godenzi/Tag, p. 381).

C. Breach of Duty of Care in Particular

1. Duties of Care of Mountain Guides and Snow Sports Instructors

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The duties of care of mountain guides and snow sports instructors are explicitly legally regulated, which leads to a statutory duty of care in addition to the usually contractual one. Article 2 paragraph 1 of the RiskG stipulates that anyone who offers an activity covered by this law must take measures that are necessary according to experience, possible according to the state of the art, and appropriate according to the given circumstances, to ensure that the lives and health of the participants are not endangered. According to paragraph 2, this includes in particular:

• Informing customers about the specific dangers associated with the chosen activity;
• Assessing the customer's ability to carry out the chosen activity;
• Checking the equipment for condition and freedom from defects;
• Checking the suitability of weather and snow conditions;
• Ensuring sufficiently qualified staff;
• Deploying enough staff depending on the difficulty and danger of the activity;
• Taking into account the environment (animals and plants).

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In the area of snow sports tours and off-piste skiing, the assessment of the "suitability of weather and snow conditions" and in particular the avalanche danger is of utmost importance, as two-thirds of deaths can be attributed to avalanches. However, neither the law nor the accompanying regulation elaborate on this. To specify these, it is necessary to refer to generally accepted rules of conduct from private or semi-public associations, even if they do not represent legal norms (Federal Supreme Court 6B_92/2009 of 18.06.2009 E. 3.3.1 m.w.H.; Federal Supreme Court 6B_727/2020 of 28 October 2021 E. 2.3.3). For the purely alpine duties of care, as they typically occur on ski mountaineering tours with climbing sections, reference is made to the mountaineering commentary "Alpinisme" (Kuonen, passim).

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For the assessment of weather and snow conditions in the case of snow sports tours and off-piste skiing, in particular, the avalanche risk assessment is crucial. In Switzerland, the relevant professional and sports associations (mountain guide association, snow sports instructor association, Swiss Ski, Cableways Switzerland, various rescue organizations) as well as the federal government and federal-related companies (SLF, Federal Office of Sport, Army, SUVA, Prevention Consultation Centre for Accidents BFU) have agreed on standards in the sense of a "unité de doctrine" and have founded the "Core Training Team Avalanche Prevention Snow Sports" (KAT) for this purpose. The KAT's leaflet "Achtung Lawinen!", which describes highly compressed assessment and decision aids for avalanche risk management, has its origin in the assessment system created by mountain guide Werner Munter according to the (filter) method 3x3 (Werner Munter, 3x3 Avalanches, Risk Management in Winter Sports). This regularly revised leaflet consolidates the latest state of research and practice and necessarily requires recourse to specialist literature, as it is not self-explanatory and requires prior knowledge. The commentary on the Risk Activities Ordinance as an aid to interpreting the statutory duties of care then also explicitly refers to this leaflet (Commentary on Art. 6 RiskV).

a. Avalanche Risk Assessment Lege Artis

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The 3x3 filter method allows a systematic approach to make a risk-conscious, justifiable decision in three consecutive phases of planning, on-site evaluation, and individual slope assessment.

Planning

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The starting point of the avalanche risk assessment is the previous planning of the snow sports tour or off-piste route, in which the factors conditions, terrain, and people are evaluated. The aim is to define a tour goal that fits the current weather and avalanche situation as well as the needs and abilities of all participants. According to the constant practice of the Federal Court, it is mandatory to consult the daily avalanche bulletin of the SLF (including the associated interpretation aid) in winter (Federal Supreme Court 6B_275/2015 of 22 June 2016 E. 3.2 m.w.H.; Federal Supreme Court 6B_92/2009 of 18 June 2009 E. 3.3.1 m.w.H.; available at: SLF Homepage - SLF). This national avalanche bulletin, which appears at 17:00 and the next day at 08:00, describes the expected avalanche situation for a region. It is important to note that this is "merely" a forecast, as correctly identified by the Federal Court, which states that ultimately the local conditions always have to be assessed (Federal Supreme Court 6B_403/2016 of 28 November 2017 E. 3.1 m.w.H.).

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The avalanche danger is assigned one of the five European danger levels (level 1 - low; level 2 - moderate; level 3 - considerable; level 4 - high; level 5 - very high). With the winter season 2022/2023, intermediate levels were introduced from the avalanche danger level moderate (danger level 2), which provide information about whether the danger is rather in the lower range (-), about in the middle (=), or rather in the upper range (+) within the danger level. However, this applies exclusively to dry avalanches. The avalanche danger describes the probability and size of avalanches in a region and not the trigger probability. The avalanche danger then does not increase linearly from level to level, but disproportionately. The higher the avalanche danger level, the more frequent are the spots with very weak snow cover stability, where an avalanche triggering is possible, and the more frequent and potentially larger are the expected avalanches. Furthermore, the avalanche bulletin identifies the danger spots (altitude and slope exposure), where the avalanche danger mainly prevails, so that as a rule of thumb, one danger level less can be assumed in the danger spots not explicitly named. The same applies to off-piste terrain, which due to its proximity to the mountain railway infrastructure is usually more frequently travelled and sometimes also secured by the mountain railway operators. As a result, this snow sports terrain regularly has a more favorable snow cover structure, which is why one danger level less can often be assumed. Finally, the avalanche bulletin points to one of the five expected avalanche problems (new snow, drifting snow [wind], old snow [weak snow cover], wet snow [water], glide snow), so that depending on the problem, different measures and behaviors need to be taken. Finally, it includes general information about the snow cover structure and the weather (see overall: Harvey/Rhyner/Schweizer).

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Also, during the planning phase, using national maps and slope inclination maps - paper maps or nowadays often with digital maps from Swiss Topo (available for free at map.geo.admin.ch) - so-called key points need to be identified. Using a reduction method, such as the widely used and implemented in both snow sports instructor training and SAC tour leader courses Graphic Reduction Method (GRM), an initial assessment of avalanche risk is to be made.

Source: Information leaflet «Beware Avalanches!»

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With this GRM, based on the two parameters of avalanche hazard level/slope steepness, the risk of triggering an avalanche on a specific slope can be roughly estimated. It is important to know that slab avalanches only occur on slopes with an inclination of 30° or more (Harvey/Rhyner/Schweizer, p. 49). The GRM includes the elementary reduction method by Werner Munter with clearly defined limit values, according to which slopes below 40° should be walked on at moderate hazard level (level 2), slopes below 35° at considerable hazard level (level 3), and slopes below 30° at high hazard level (level 4). As long as these limits are observed, according to GRM, one always moves in the orange area at most. Besides the GRM, the Professional Reduction Method (PRM) by Werner Munter is often used in mountain guide training. However, due to the latest scientific findings, the PRM is likely to lose importance because it is based on a doubling of avalanche danger from one hazard level to the next, even though studies have now shown that the avalanche danger increases fourfold from one hazard level to the next (Winkler et. al., p. 1 ff.). Finally, the relatively young Quantitative Reduction Method (QRM) should not go unmentioned. In this reduction method, based on "artificial intelligence", an algorithm calculates the avalanche risk twice a day for every point on a large number of snow sports tours based on data (digital elevation models, current avalanche bulletin) (see Skitourenguru.ch).

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On-Site Evaluation

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In the second step, on-site in the terrain/ski area, it must be assessed whether the planned or expected factors - conditions, terrain, and humans - match the actual ones. The goal is to decide whether the planned tour/variant can be carried out or whether it is necessary to switch to an alternative destination from the outset or during the tour or even to start the retreat.

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A crucial factor for this is the verification of whether the regionally predicted avalanche danger corresponds to the local conditions, for which active observations in the snow sports terrain are to be made (especially new snow amount, warning signs such as fresh and spontaneous avalanches, wind influence). Anyone who ventures into the "free" snow sports terrain must - regardless of the avalanche danger level - carry avalanche emergency equipment. Accordingly, the participants' equipment must be checked at the latest at this point, and a check of the avalanche transceiver (LVS) must be carried out. According to the prevailing doctrine, the absolutely essential emergency equipment consists of the (transmitting) LVS device, an avalanche shovel, and probe (Harvey/Rhyner/Schweizer, p. 26 f., 300 f.; Winkler/Brehm/Haltmeier, p. 66 f.). The avalanche airbag is, according to consensus in the expert circles (still), not part of the obligatory safety equipment. Because professionals are obligated to use all technically possible and reasonable means, according to the view represented here, three-antenna LVS are now compulsory. It is known that in total burials (head in snow), the most common cause of death is suffocation, as often there is no or only a small breathing hole. Statistically speaking, about 90% of those buried survive, who do not already die due to previous trauma injuries during the pull-along (which is the case for every third person), if they are rescued within the first 15 minutes. After that, the chance of survival drops rapidly (see study by Procter et al., p. 173–176). The rapid companion rescue is therefore crucial for survival, which is why only the latest generation LVS devices, i.e., with three antennas, are to be used (see also Winkler/Brehm/Haltmeier, p. 248 f.). In this context, it should be mentioned that the Recco reflectors, which are built into winter sports clothing and now also in ski boots, are not a substitute for LVS devices. The search using a Recco device is carried out exclusively by professional rescue, which, in contrast to companion rescue, regularly arrives too late at the scene of the accident. Finally, in the absence of complete mobile network coverage in the mountains, for those regions where it is known that there is no mobile network, according to the opinion represented here, it is imperative to carry a communication device (radio or satellite device) in addition to the mobile phone, as there is always a risk to life in the event of avalanches and professional rescue forces must be alerted as quickly as possible in parallel with companion rescue (Winkler/Brehm/Haltmeier, p.66 f., 247 f., 271). As an aid, the network coverage maps of the three major Swiss telecommunications providers can be consulted on the Internet (see Swisscom, Salt, Sunrise).

Einzelhangbeurteilung

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In einem letzten und entscheidenden Schritt ist der Einzelhang – regelmässig die identifizierte(n) Schlüsselstelle(n) – abschliessend zu beurteilen und zu entscheiden, ob dieser (vernünftigerweise) begangen werden kann oder nicht und falls ja, gegebenenfalls mit welchen risikominimierenden Massnahmen (Entlastungsabstände, Einzelbegehung, Spuranlage in Auf-und Abfahrt). Hierzu sind wiederum die Faktoren Verhältnisse, Gelände und Mensch miteinzubeziehen. Bei der Beurteilung des Einzelhanges stehen vor allem die Schnee- und Lawinenverhältnisse im Hang und die spezifischen Geländeeigenschaften (Grösse, effektive Steilheit, Geländeform, Geländefallen) im Vordergrund. In diesem Stadium müssen auch zwingend die Konsequenzen eines Lawinenniederganges (Absturz, Totalverschüttung, Traumaverletzung während Mitrisses, etc.) berücksichtigt werden. Schliesslich kommt auch dem Faktor Mensch grösste Bedeutung zu (Können, körperliche und psychische Verfassung, «Gehorsam» bzw. Disziplin).

b. Sorgfaltsmassstab

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Das Gesetz selber legt das höchstzulässige Risiko nicht dar, weil im Strafrecht selbst die individuell-konkreten Sorgfaltspflichten nicht umschrieben sind (Donatsch/Godenzi/Tag, S. 361). Nach dem individuellen Sorgfaltsmassstab von Art. 12 Abs. 3 StGB ist das Risiko, welches mit riskanten Tätigkeiten maximal verbunden sein darf unter Berücksichtigung der konkreten Umstände des Falles sowie den persönlichen Verhältnissen des Handelnden zu bestimmen, wozu namentlich die berufliche Ausbildung und Erfahrung, geistige Anlagen und Bildung gehört (BGer 6B_727/2020 vom 28. Oktober 2021 E. 2.3.3 in fine; Praxiskommentar StGB-Trechsel/Fateh-Moghadam, Art. 12 N 35). Die Frage nach dem zulässigen bzw. unzulässigen Risiko stellt im Ergebnis daher eine Frage der Würdigung dar. Es ist hervorzuheben, dass mit der ersatzlosen Streichung von Art. 7 Abs. 1 lit. c aRiskV per 1. Mai 2019, der für Schneesportlehrer*innen vorsah, dass die Lawinenrisikobeurteilung für sie höchstens ein geringes Lawinenrisiko ergeben durfte (nicht zu verwechseln mit Lawinengefahrenstufe «gering»), sich die Lawinenrisikobeurteilung für Schneesportler*innen nunmehr nach den allgemeinen Schranken des «erlaubten» Risikos bemisst.

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Due to their special technical and experiential knowledge, snow sports instructors, but especially mountain guides, are subject to a higher standard of care (BGer 6B_275/2015 of June 22, 2016 E. 3.2 m.w.H.; Benisowitsch, p. 142 and 149; Frei, para. 147; Gerber, pp. 149, 155 ff.). On the other hand, they should be granted a larger margin of discretion in decision-making than those individuals who lack these skills and technical knowledge (BGE 97 IV 169, E. 2). For example, mountain guides are capable of independently creating an avalanche bulletin in the terrain (see, for example, "Nivocheck 2.0" by the Swiss Mountain Guide Association, Winkler/Brehm/Haltmeier, pp. 118 ff.). Avalanche science and the associated risk assessment is not an exact science and is fraught with large uncertainties. Similar to the medical profession in healthcare, mountain guides and snow sports instructors have various assessment and decision-making aids for avalanche risk assessment and minimization. Snow sports instructors and mountain guides must observe the care required and reasonable under the circumstances and are not liable for inherent sporting risks. Drawing on the Swiss Federal Court's jurisprudence on the duty of care in medical practice, snow sports instructors and mountain guides only commit a breach of the duty of care if their approach can no longer be considered justifiable according to general professional knowledge and does not meet the objectified requirements of "alpine art" (BGer 6B_727/2020 of October 28, 2021 E. 2.3.4).

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To assess the legally maximum permissible risk, the reduction methods, especially the GRM, are suitable assessment tools. However, being in the orange or even red zone according to the GRM does not per se constitute an "unpermitted" risk. There always needs to be an assessment of the individual case considering all specific circumstances. While the stay in the orange or even red area according to the reduction method can still be considered a permissible risk in the individual case for avalanche-savvy and experienced snow sports participants, inexperienced snow sports participants without further ado might find themselves in the area of "unpermitted" risk.

2. Duties of Care of Tour Leaders

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The duties of care of volunteer tour leaders are not specifically legislated, especially since the RiskG is explicitly not applicable (Art. 2 Para. 2 RiskV). However, this does not change the fact that tour leaders also have to adhere to essential duties of care at all times, especially when it comes to elementary safety standards (see also Benisowitsch, p. 176). The duties of care are enforced, as they are with professionals, by referring to generally accepted behavioral rules from private or semi-public associations. The SAC tour leaders as well as J+S leaders are trained in the winter area in particular on the basis of the SAC textbook "Bergsport Winter" and the leaflet "Achtung Lawinen!", which is why the avalanche risk assessment must be carried out according to the same principles as for mountain guides and snow sports instructors, and reference can be made accordingly (see para. 63, III.C.1.a above). Moreover, the duties of care for SAC tour leaders also arise from the SAC guide "Legal Status of SAC Tour Leaders", which is currently being revised. Due to the individual standard of care, it should be noted that this standard is regularly less high for tour leaders and J+S leaders than for mountain guides and snow sports instructors (see Gerber, p. 173).

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Tour leaders and J+S leaders, however, must necessarily ensure that they have the skills to recognize the dangers associated with the activity they undertake, otherwise they are guilty of negligence in undertaking (Donatsch/Godenzi/Tag, p. 358 f.). These minimal skills for risk assessment in snow sports terrain are ensured within the framework of the SAC and J+S in that, on the one hand, the leaders have to go through training courses and, on the other hand, their tours have to be checked and approved by internal instances (see para. 21, I.B.2a above).

3. Duties of Care of "De Facto" Leaders

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The Federal Court has considered that the responsibility of a de facto leader for the safety of the group entrusted to him is no less than that of professionals (BGE 83 IV 9 E. 1, see also Gerber, p. 181 f.). Therefore, reference can be made to the corresponding duties of care of mountain guides and snow sports instructors (see para. 60, III.C.1. above). The individual standard of care must always be taken into account, even in the case of de facto leadership, which is why this standard should regularly be less high than for professionals, provided they are not professionals who are on the move in a private context. It also applies here that the leadership role must be renounced if no guarantee can be provided for the required safety, otherwise the "de facto" leadership commits a fault of assumption.

4. Duties of Care of Military Leaders

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In addition to the general duties of care of their profession (see para. 63, III.C.1.a above), military mountain guides are also subject to specific military provisions (regulations, service orders, etc.). The mountain specialists, for their part, are trained on the basis of civilian specialist books, especially the SAC textbook "Bergsport Winter" and the leaflet "Achtung Lawinen!". The standard of care corresponds approximately to that of the SAC tour leaders of the level Winter 2, which is why reference can be made to the corresponding statements (see point 3 b. above).

D. The Individual Criminal Offences

1. Negligent Homicide / Negligent Serious or Simple Bodily Harm

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Negligent homicide according to Art. 117 StGB is committed by anyone who negligently causes the death of a person. Negligent serious or simple bodily harm according to Art. 125 StGB is committed by anyone who negligently causes harm to a person's body or health.

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A conviction therefore requires that the perpetrator has caused the death or bodily injury of a person by breaching a duty of care. The legal distinction between serious and simple bodily injury is not always straightforward, which is why it may be necessary to resort to forensic reports. The distinction is important not only for determining the penalty in case of conviction, but also for procedural reasons. While negligent serious bodily harm is an official offence, negligent simple bodily harm is a complaint offence, which is only pursued at the request of the injured person (see Art. 30 f. StGB). The Military Criminal Code, however, does not make this distinction, so that all bodily injuries must be pursued ex officio (Art. 124 MStG).

a. Roc d'Orzival Avalanche on Variant – Negligent Homicide Mountain Guide (Conviction)

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The Federal Court confirmed the conviction of a mountain guide for negligent homicide (BGer 6B_275/2015 of 22 June 2016). The guide undertook a variant descent with a group of five skiers in Grimentz VS on a beautiful and calm day with the avalanche danger level being substantial (level 3). There had been about 50 cm of fresh snow three days earlier. Before the group was supposed to traverse a northeast slope of over 40° below a ridge for about 20 m, the mountain guide instructed his guests, warned them to be careful, and ordered single riding. However, he did not order them to necessarily follow his track. After the mountain guide and three guests had passed the traverse, the penultimate guest got caught in an avalanche on the traverse and, despite rapid rescue by his companions, could only be recovered dead.

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Das Gericht bejahte eine Sorgfaltspflichtverletzung des Bergführers, weil er im Unglückshang nicht die sicherste Route gewählt hatte und zur Beurteilung der Lawinengefahr im Einzelhang sich lediglich auf eine aussageschwache Schneedeckenuntersuchung mittels Skistock und eigenen Sprüngen verlassen hatte. Er hätte ohne Weiteres dem (sicheren) Grat folgen können, anstatt abzusteigen und den Unglückshang zu traversieren. Dass die Schneedecke zuvor bei vier Skifahrern gehalten hatte, sei nicht von Bedeutung. Eine Unterbrechung des Kausalzusammenhangs liege zudem nicht vor, weil der Verstorbene sich korrekt verhalten habe. Selbst das Befahren der Spur hätte gemäss Gutachten die Lawine auslösen können, so dass es nicht darauf ankomme, ob der Verstorbene den Unglückshang letztlich in der Spur oder wenige Meter darunter traversiert habe. In dem der Bergführer trotz Vorhersehbarkeit einer Lawinenauslösung und Möglichkeit einer Alternativroute den Unglückshang befuhr, hat er das erlaubte Risiko überschritten und damit eine Sorgfaltspflichtverletzung begangen.

b. Gletscherspaltensturz Vadret da Roseg auf Skihochtour – Fahrlässige Tötung Bergführer (Schuldspruch)

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Zwei Bergführer unternahmen mit ihren Gästen unangeseilt eine Skihochtour auf den Piz Glüschaint GR, als im Aufstieg auf dem Vadret da Roseg bei einem Gast die Schneebrücke nachgab, wodurch dieser 30 m in eine Gletscherspalte zu Tode stürzte. Das Gericht bestätigte den vorinstanzlichen Schuldspruch der beiden Bergführer wegen fahrlässiger Tötung. Sie hätten eine Sorgfaltspflichtverletzung begangen, indem sie auf dem stark zerklüfteten und schneebedeckten Gletscher auf das Anseilen verzichteten (Urteil des Kantonsgerichts Graubünden vom 13. September 1995, PKG 1995 Nr. 29, E.2, S. 109 ff., dessen Nichtigkeitsbeschwerde das Bundesgericht in BGer 6S.194/1996 vom 7. Juni 1996 [nicht publiziert] abgewiesen hat).

c. S-charl Avalanche on Ski Tour - Negligent Homicide Mountain Guide (Conviction)

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The Federal Court confirmed the conviction of a mountain guide for negligent homicide at the first instance (BGE 118 IV 130). The guide undertook a ski tour with a group of seven on the Mot San Lorenzo (Lorenzo Mountain) GR through the Valbella at a moderate avalanche danger level (Level 2). The group ascended in a close formation. As the northwest slope became steeper, the mountain guide ordered a short stop on a small platform in order to ascend alone about 20 m further to check the firmness of the snow cover. An avalanche was triggered above him in a 38° steep couloir, burying the entire group. While the mountain guide and one guest managed to free themselves from the snow, the remaining six people died despite immediate rescue efforts by their companions.

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The Federal Court found that the mountain guide breached his duty of care by traversing the steep slope, clearly more than 30°, with his guests without ordering relief/safety distances and not optimally setting the track. The court expert assessment rated the avalanche danger on the slope where the accident occurred as considerable (Level 3), which the mountain guide would not have been able to recognize. Also, even the dutiful ordering of relief/safety distances would not have prevented the avalanche. However, it is highly likely that not all group members would have been buried with such an order. The court considered that the mountain guide is not criminally responsible for triggering the avalanche, but for not ordering relief/safety distances and for not having lost as many guests if the track layout had been more optimal.

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In our opinion, this judgment cannot be followed, and the reasoning fails from a legal point of view. The avalanche was neither predictable for the mountain guide nor would the ordering of relief/safety distances have prevented the avalanche, which is why he cannot be accused of a breach of duty of care or a violation of duty. Following the reasoning of the Federal Court, irrespective of the avalanche danger, i.e. even at a low avalanche danger level (Level 1), relief/safety distances should always be ordered to reduce damage.

d. Davos Avalanche (Meierhofer-Tälli) on Variant - Negligent Homicide Freerider (Conviction)

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The Federal Court confirmed the conviction at the first instance of a snow sports enthusiast from a group of four freeriders for the negligent homicide of three people (BGer 6P_163/2004 or 6S.432/2004 of May 3, 2005).

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The accused rode at a considerable avalanche danger level (Level 3) as the third person down a 38° steep, rock-ridden northeast slope and triggered a slab avalanche, which fatally buried the two group members who had ridden down before him and were waiting for him on the slope. Three other (unrelated) individuals who were also off the ski slopes were caught by the avalanche further down. One of these three died in the snow. A criminal procedure also initiated against the chief of the ski slopes/rescue team was dismissed (decision of the Cantonal Court of Graubünden BK 03 11 of June 18, 2003).

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The court considered it proven, based on the expert opinion of an avalanche specialist, that the accused had triggered the avalanche. His violation of the duty of care consisted in ignoring the avalanche warning notices of the cable car operator, not conducting an avalanche danger assessment, and not possessing the necessary expertise for this. As a result, he ultimately disregarded the relevant rules of conduct in avalanche knowledge. The decision is to be endorsed regarding the negligent homicide of the third party who was located below the foot of the slope and was not part of the freeride group. However, the conviction for negligent homicide of the group members who were waiting for the accused on the slope where the accident occurred is not convincing. The Federal Court considered that there was no self-endangerment excluding the facts of the case because the two deceased had had no control over the course of events until the (fatal) incident. This cannot be followed because the two deceased apparently did not wait for the accused on a so-called "safe island" on the slope where the accident occurred, thus at least indirectly having control over the course of events, especially since they had deliberately and willingly put themselves in this latent danger.

e. Flumserberg Avalanche on Variant - Negligent Homicide Tour Leader (Conviction)

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The Federal Court confirmed the conviction at the first instance for negligent homicide of a tour leader (BGer 6B_92/2009 of June 18, 2009). The accused, as a German "Ski-Hochtour leader," undertook a variant in the Flumserberg SG with a group of ten as part of a ski club. On the day of the accident, the avalanche danger level was significant (level 3) and visibility was poor (fog). When the accused, together with his group, traversed a 36° steep slope in closed formation, an avalanche was triggered, burying four group members. Three of them could be rescued, while the burial of the fourth was only noticed an hour later, so he could only be recovered dead several hours later. The violation of the duty of care was seen in the fact that the tour leader had set off for the planned variant in the first place, had not traversed the slope of the accident with relief/safety distances, and had carried out insufficient inventory control.

f. Vilan Avalanche on Ski Tour - Negligent Homicide SAC Tour Leader (Dismissal)

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During an SAC section tour on January 31, 2015, an avalanche descended on the descent from the Vilan GR, which caught eight out of nine members of a ski tour group and killed five. After the public prosecutor's office dismissed the criminal proceedings against the SAC tour leader for negligent homicide with a decree of June 7, 2017, the complaint chamber of the cantonal court overturned it on February 12, 2018 (decision of the Cantonal Court of Graubünden SK 17 28 of October 12, 2018). After further evidence collection, the prosecutor's office dismissed the proceedings again, which became legally binding at the end of January 2019. Therefore, no criminal behavior could be attributed to the tour leader.

g. Jungfrau Disaster in the Military - Negligent Homicide Mountain Guide (Acquittals)

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In the widely known "Jungfrau drama," in which six mountain specialist recruits fatally crashed on July 12, 2007, the military court acquitted two military mountain guides, in particular from the accusation of multiple negligent homicides (Art. 120 MStG) (judgment of Military Court 7 of November 20, 2009, MG7 09 161). Because the Jungfrau is not only a very popular and frequently visited summit goal for summer high-altitude tours but also for ski mountaineering, this judgment - mutatis mutandis - also has effects for the topic discussed here, especially since the normal route via Rottalsattel is the same and the summit is climbed on foot in alpine style (i.e., with crampons, ice axes, and rope) from this saddle on ski mountaineering tours.

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As part of a leadership/trial tour, twelve recruits in four three-person rope teams under the general leadership of two mostly unroped mountain guides ascended to the Jungfrau (4158m). In the days leading up to it, 50-70 cm of fresh snow fell in the Jungfrau region. The day of the accident was mostly cloudless, with light winds and temperatures around -6°C. After the Rottalsattel, the mountain specialists chose not to take the normal route due to wind-driven snow, but to ascend directly in the fall line towards the Jungfrau summit. According to the military court's evidence, the recruit leading the first rope team in the up to 45° steep and mostly blown off terrain rib, walking on the so-called short rope from a distance, triggered two snow slabs with a clearly audible "wumm" sound. These fell in wind-driven snow troughs to the left and right of the ridge, which were connected by a fresh snow bridge. According to the court, the subsequent sweeping cascade did not occur due to the snow slabs and thus the avalanches, but because the rope team leader of the first rope team presumably lost his balance out of shock at the triggering of the snow slabs or due to irritation from the snow sliding to the left and right. All fourteen alpinists were caught in the ensuing sweeping cascade, with the first two three-person rope teams falling about a thousand meters through the Rottalcouloir to their deaths, while the remaining recruits and accused mountain guides who were walking behind ended up lying on the Rottalsattel and survived.

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The military court initially determined in legal terms that the two mountain guides had been jointly responsible for the safety of all recruits on the tour and not each one exclusively for their own group of six; this was due to the groups being combined for the trail work throughout the tour due to the fresh snow, and because the decision to ascend directly over the terrain rib in the accident slope was ultimately made jointly (see para. 16).

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The court justified the acquittals primarily on the grounds that, contrary to the indictment, the mountain guides were allowed to assume a "moderate" and not "significant" avalanche danger at the accident slope. Due to the "moderate" avalanche danger level, they also did not have to anticipate the (remote) triggering of two avalanches on the fresh snow bridge, which is why the predictability of the avalanche triggering should already be denied. The court, therefore, left open the question of whether the loss of balance of the first rope team, which is said to have led to the sweeping cascade, was foreseeable for the two mountain guides. However, in considering that the front rope teams consisted of the most experienced recruits and participants who were sure-footed and generally experienced in mountain tours, and that the fresh snow bridge was only about 10 cm thick, the court implicitly denied the foreseeability. According to the court, the fallen rope teams ultimately became victims of a treacherous weak layer, a constellation that unfortunately belonged to the unavoidable and therefore permissible risks in the mountains, which is why the two mountain guides could not be accused of a breach of duty of care. In terms of a potential justification, the court finally considered that acquittals would have had to occur even if foreseeability was affirmed due to a violation of the principle of indictment. The court justifies this by arguing that the two mountain guides were explicitly accused of foreseeing an avalanche triggering in the case of "significant" avalanche danger and not also in "moderate" danger.

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The two acquittals did not go without criticism in public. In this regard, reference is made to the judgment discussion of the emeritus law professor Vest ("Acquittal of the military mountain guides accused in the mountain accident on the Jungfrau - a misjudgment?"). Against the background that the facts of the case remained contentious until the end (avalanche accident or classic alpine accident through sweeping accident) and no fewer than six members of the army lost their lives, it is surprising that the military prosecutor (auditor) has withdrawn his appeal registration.

3. Disturbance of Public Transport (Art. 237 StGB)

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A person who intentionally disrupts public transport, in particular traffic on the road, on the water, or in the air, and thereby knowingly endangers human life, is guilty of disturbance of public transport (Art. 237 Para. 1 Subpara. 1 StGB). It is an aggravating factor if many people are endangered (Art. 237 Para. 1 Subpara. 2 StGB). A person who acts negligently is also punishable (Art. 237 Para. 2 StGB).

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According to universally accepted doctrine and jurisprudence, this norm is applicable to open ski slopes (Praxiskommentar StGB-Trechsel/Coninx, Art. 237 N 5; BGer 6B_403/2016 of 28 November 2017 E. 1.1; Judgement of the Federal Criminal Court SK.2006.2 of 15 September 2006). The fact becomes significant as soon as an avalanche descends on an open ski slope or traffic road. The offence is fulfilled with the endangerment of a single person, provided that they are concretely endangered in life and limb. This requires a near and serious probability that a person will be injured or even killed. This is also the case if the occurrence of the success was only prevented by chance or by the behaviour of a participant (Judgment of the Federal Criminal Court SK.2006.2 of 15 September 2006 m.w.H.).

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If the endangerment is realized in a negligent injury according to Art. 125 StGB or killing according to Art. 117 StGB, the offence of disruption of public transport is consumed by the former, unless further persons were endangered (Praxiskommentar StGB-Trechsel/Coninx, Art. 237 N 19). In reference to the jurisprudence of the Federal Supreme Court on narcotics law, "many people" should be understood to mean at least 20 people, even though the Federal Supreme Court has considered a minimum number of 10 people as sufficient in the case of a plane hijacking (Praxiskommentar StGB-Trechsel/Coninx, Art. 237 N 15).

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Im Nachfolgenden ist auf zwei Bundesgerichtsentscheide mit Lawinenniedergängen auf geöffnete Skipisten einzugehen, die durch Schneesportler*innen ausgelöst wurden. Für Lawinenniedergänge infolge Verletzung der Verkehrssicherungspflicht von Bergbahnbetreiberinnen wird auf den Bergsportkommentar «Pisten-Skifahren» verwiesen (vgl. Elsener/Wälchli, passim).

a. Lawine in Zermatt vom 31. Dezember 2009 (Freispruch "faktischer" Führer)

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Mit Urteil vom 6B_410/2015 vom 28. Oktober 2015 sprach das Bundesgericht den «faktischen» Führer vom Vorwurf der fahrlässigen Störung des öffentlichen Verkehrs frei, nachdem ihn das Walliser Kantonsgericht schuldig gesprochen hatte. Der erwachsene Beschuldigte war am Nachmittag des Unfalltags mit einer Skigruppe (Freerider), bestehend aus ihm, einer weiteren erwachsenen Person und fünf Jugendlichen bzw. jungen Erwachsenen im Skigebiet von Zermatt unterwegs, als er ihr -– ohne das Lawinenbulletin konsultiert oder sich über die aktuelle erhebliche Lawinengefahr (Stufe 3) informiert zu haben -– vorschlug, über eine sogenannte «wilde Piste» abzufahren. Der Beschuldigte fuhr als erster den Hang hinunter, gefolgt von den übrigen Gruppenmitgliedern. Hierbei löste er eine Lawine aus, die bis auf die darunterliegende Skipiste niederging. Während der Beschuldigte aus der Lawine ausfahren konnte, wurden drei Jugendliche von der Lawine erfasst, aber innert kürzester Zeit ohne schwere Verletzungen geborgen. Schneesportler*innen, die sich auf der Skipiste befanden, konnten rechtzeitig anhalten, so dass niemand erfasst wurde. Das Bundesgericht verneinte die Vorhersehbarkeit der niedergegangenen Lawine für den Beschuldigten. Es erwog, dass das Verhalten des Beschuldigten, d.h. die gesicherten Skipisten mit einer Gruppe ihm anvertrauter Jugendlicher bei erheblicher Lawinengefahr zu verlassen, verantwortungslos, jedoch mangels objektiver vorhersehbarer Lawinengefahr strafrechtlich nicht sorgfaltswidrig war. Die Bergbahnbetreiberin hatte nämlich am Vormittag am Unglückshang eine erfolglos verlaufene Helikoptersprengung vorgenommen, so dass der Lawinenniedergang am Nachmittag weder für den Beschuldigten noch für die Sicherheitsverantwortlichen der Bergbahnbetreiberin vorhersehbar war. Der Beschuldigte habe schlichtweg Glück gehabt, dass am Vormittag im Unglückshang Sprengungen vorgenommen wurden, eine Lawinengefahr nicht vorhersehbar war und es letztlich zu keinen gravierenden Folgen mit Personenschaden gekommen ist. Diesem Urteil ist nach Ansicht des Autors zuzustimmen.

b. Avalanche in Anzère on 27th December 2009 (Conviction of Freeriders)

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With its judgment 6B_403/2016 of 28th November 2017, the Federal Court found a three-member skiing group (freeriders) guilty of negligent disruption of public transport, after they were acquitted by the Wallis Cantonal Court. The three friends went skiing in the free snow sports terrain of the "Combe de Serin" in the Anzère ski area at the considerable avalanche risk level "Level 3", for which they had to pass several avalanche warning signs and barriers. In a slope around 30° steep and covered with about 20 cm of fresh snow, they triggered a slab avalanche remotely, which descended onto the open ski slope and caught two skiers. These were rescued within a very short time with minor injuries.

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First of all, it should be noted that contrary to the Zermatt case, the criminal proceedings were not directed against a single group member ("de facto" leadership), but against all group members. According to the, albeit disputed in legal doctrine, Federal Court case law, "joint principalship" is possible even in cases of negligence (Federal Supreme Court 113 IV 58 "Rolling Stone"). For this reason, in my opinion, it was correct to initiate criminal investigations against all three group members, especially since they had jointly decided to ride in the free snow sports terrain and, according to the avalanche expert report, the additional load of the group triggered the slab avalanche (joint overall action).

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However, the court's reasoning in connection with the predictability of the avalanche descent is incorrect, so acquittals should have been granted. According to the expert opinion, the freeriders remotely triggered the avalanche in terrain under 30°. Even though remote triggering is possible at avalanche risk level 3, the avalanche was not foreseeable for the three freeriders in this case. On the one hand, the mountain railway operator carried out unsuccessful avalanche detonations on the accident slope the day before and (correctly) refrained from further detonations on the day of the accident due to unchanged conditions. On the other hand, at the time of the triggering, the three defendants were in terrain of less than 30°, i.e., essentially non-avalanche terrain. The court-appointed expert came to the same conclusion, denying the predictability for both the three local and partly experienced freeriders and the officials of the mountain railway operator (E. 3.4.1). Already due to the lack of predictability, acquittals should therefore have been granted. The court considered that the freeriders had the minimum ability to assess an avalanche risk and to consult the avalanche bulletin due to courses (see E. 3.6), which eliminates a violation of the duty of care by taking on the risk. The court justifies the violation of the duty of care rather by the fact that the three freeriders, despite warnings from the mountain railway operator, their experience, and the information from the avalanche bulletin, went into the unsecured snow sports terrain above an open ski slope. If this argument were to be followed, off-piste skiing (freeriding) would be completely prohibited from the considerable avalanche risk level (Level 3) because the mountain railway operators are obliged to install yellow flashing warning lights and avalanche warning boards in the terrain from the considerable avalanche risk level (Level 3) (SKUS guidelines, para. 34; SBS guidelines, para. 177). Ignoring these warnings, however, cannot constitute a violation of the duty of care in itself, but rather indicates to snow sports enthusiasts that they are now entering the "free" snow sports terrain, where they must assess the avalanche risk on their own responsibility. In this sense, these warnings serve more to inform, especially inexperienced, snow sports enthusiasts and to legally relieve the mountain railway operators. The three freeriders, however, did not make a negligent assessment of the avalanche risk because they were not in an avalanche-prone slope at the time of the avalanche triggering, especially since this slope had been regularly secured by the mountain railway operator under unchanged conditions, most recently the day before.

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In conclusion, the Federal Court, in the author's opinion, wrongly affirmed both the foreseeability and the actual breach of duty of care. It did so even in contradiction to its more than comparable "Zermatt judgment". This inconsistency is all the more surprising as all members of the then three-member panel of judges sat in the now five-member panel of judges with the same presidency.

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If a mountain railway company wants à tout prix to prevent snow sports enthusiasts from leaving the secured ski slopes in tricky avalanche conditions, without having to shut down operations, contractual agreements at the time of ski ticket purchase, including contractual penalties for violations of the transport and usage conditions, would be conceivable. Also conceivable is the public-law and thus legislative route of prohibitions on entry/driving. At this point, for example, reference should be made to the Building Law of the municipality of Zuoz GR of 21 January 2000, which, in case of avalanche danger (however without further defining this), knows a general prohibition of entering or driving in the "Val Buera" in winter time (Art. 81 para. 6 in conjunction with Art. 144 BauG), under threat of punishment.

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Off-piste skiers, on the other hand, must be aware of their responsibility. As the cited case law shows, a verdict of guilt or acquittal often depends on coincidences. In this context, it is particularly important to take into account the fact that ski slope users do not wear avalanche transceivers (LVS devices) and avalanches descending onto ski slopes can quickly result in accusations of negligent homicide.

4. Failure to Provide Assistance (Art. 128 StGB)

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A person who fails to assist is guilty of failing to help someone they have injured (at least in the form of bodily harm) or a person who is in immediate danger of life (regardless of the cause), although it could reasonably be expected of them to do so under the circumstances (Art. 128 para. 1 StGB). Also punishable is anyone who prevents others from providing emergency assistance (Art. 128 para. 2 StGB, on the whole: Trechsel/Mona, Art. 128 N 2 and 8).

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With this criminal norm, the law establishes a duty of action towards all persons, regardless of whether they caused the damage themselves or it was caused by third parties. In the area of snow sports tours and off-piste runs, the norm comes into play particularly in the event of avalanches. On the one hand, when one has triggered the avalanche oneself and thereby buries third parties, or on the other hand, in the case of avalanches triggered by third parties without one's own involvement. However, the obligation only goes as far as it is reasonable. Especially with expected follow-up avalanches, it cannot be expected of rescuers that they put themselves at risk (see also Trechsel/Mona, Art. 128 N 9). However, in such cases there is an obligation to at least raise the alarm (BGE 121 IV 18, E. 2b).

5. Damage to Property (Art. 144 StGB)

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The offence of property damage, as a complaint offence, is committed by anyone who damages, destroys or renders useless a thing over which a foreign property, use or usufruct right exists. In the context of the negligence offences discussed here, the criminal offence of property damage plays no practical role, because only intentional commission is punishable (Art. 12 para. 1 in conjunction with Art. 144 StGB).

IV. Social Insurance Law

A. General

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In contrast to the professional field, where extensive statutory provisions exist for occupational safety (see, for example, the Ordinance on the Prevention of Accidents and Occupational Diseases of 19 December 1983), the leisure field is basically not subject to direct regulations on what should be done or omitted. In other words, there is a right to risk in the leisure sector (Biefer, pp. 127 ff.). Nevertheless, the legislator restricts the insurance coverage for certain constellations by reducing the benefits or even refusing to provide them in the event of a non-occupational accident, in the interest of the insured persons who pay premiums, particularly when there is a so-called risk (see Art. 39 UVG in conjunction with Art. 50 UVV).

B. Are Snow Sports Tours and Off-piste Skiing (Freeriding) Absolute Risks?

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Snow sports, like mountaineering, have a long tradition in Switzerland and are of societal importance. Therefore, it is not surprising that the Federal Court views mountaineering and climbing as well as skiing as fundamentally protected activities and thus not as an "absurd activity" (BGE 97 V 72 E. 3; BGE 104 I 19 E. 2). The same must apply to snow sports tours and off-piste skiing in the "free" snow sports terrain (see also Benisowitsch, p. 99). Thus, snow sports tours and off-piste skiing do not per se constitute an (absolute) risk (see also Erni, p. 29). Moreover, these activities do not appear on the list - although only exemplary and with a recommendation character - of the Ad Hoc Commission Damage UVG (Recommendation No. 5/83 of 10.10.1983 / Total revision of 16.6.2010; Federal Court 8C_472/2011 of 27.02.2012 E. 2.4).

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However, in individual cases, snow sports tours and especially off-piste skiing can still represent an absolute risk if "their objective dangers to life and limb are so significant, irrespective of the training, preparation, equipment and competence of the participants, that they cannot be practically reduced to an acceptable level" (BGE 97 V 72 E. 3). This category includes in particular freeride competitions in extreme terrain. As an example, the "Xtream Verbier" freeride competition, the final race of the Freeride World Tour, is mentioned here. Here, the participants ski or snowboard down from the 3,222m high and on average around 50° steep (in places even over 60°) "Bec des Rosses". The goal is to descend the 500 vertical meters as quickly and spectacularly as possible, i.e., especially with jumps over rocks. In this activity, the snow sports athletes expose themselves to such a great and accident-prone danger that, despite their far above-average skiing skills, they are exposed to a latent risk of (falling) with a particularly high risk of serious injury or death. Because this activity involves such great risks that cannot be reduced to a reasonable level, these and comparable snow sports activities off-piste represent absolute risks. As a consequence of such behaviors, the law provides for a reduction of the cash benefits by at least half. In particularly severe cases, there is even a complete refusal of such cash benefits (see Art. 39 UVG in conjunction with Art . 50 UVV).

C. Are Snow Sports Tours and Off-piste Skiing (Freeriding) Relative Risks?

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As stated above under section A., snow sports tours and off-piste skiing are fundamentally protected activities. Through careful risk management, the inherent risks of these sports, especially the risk of avalanches, can be reduced to a reasonable level. If snow sports athletes do not minimize these risks by seriously disregarding the common rules and precautions of the sport, they commit a relative risk (see the example list of the Ad Hoc Commission Damage UVG [Recommendation No. 5/83 of 10.10.1983 / Total revision of 16.6.2010]). To affirm or deny such a relative risk, it must be asked whether the acting persons at the relevant time fulfilled all the requirements concerning personal skills, characteristics and precautions in order to cope with the undertaking at hand according to the rules of the art and to reduce the inherent risk to a tolerable level based on their skills (BGE 97 V 72 E. 3). The question of risk must therefore be assessed based on the specific circumstances of the individual case and the acting snow sports athlete, and not on the basis of an average snow sports athlete (Erni, p. 27).

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Due to the latent risk of being buried by an avalanche in snow sports tours and off-piste skiing - even in seemingly "safe" conditions - it is the opinion expressed here that solo practitioners regularly commit at least a relative risk, if in the event of an avalanche the death is due to a lack of oxygen that could most likely have been averted by a timely comrade rescue.

D. Case Studies for Benefit Reductions and Refusals

1. Snowshoe Hiker at Flügenspitz SG

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In its ruling 8C_987/2012 of 21 February 2013, the Federal Court confirmed the legality of the halving of the widow's pension of the surviving wife of a snowshoe hiker who was fatally caught in an avalanche. The victim undertook a marked and signposted snowshoe tour with one accompanying person in fine weather. However, they deviated from the official snowshoe route and the victim entered a 45° steep slope with a considerable avalanche danger level (level 3), triggering a slab avalanche which buried him. The court, like the insurance company and the cantonal social insurance court, assumed a relative risk, as the victim would have put himself in particularly great danger. The victim and his companion lacked prudent preparation, in that they had not informed themselves sufficiently about the current avalanche situation, the route and its associated dangers, and had also not carried the necessary safety equipment (avalanche transceiver, probe and shovel). Whether it was ultimately an absolute or "merely" relative risk was left open by the Federal Court, especially since the cash benefits had anyway been halved.

2. Ski Tourer in Grisons GR - Absolute Risk

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The Administrative Court of the Canton of St. Gallen confirmed the legality of halving the widow's and orphan's pension of the surviving wife and daughters of a ski tourer who was fatally caught in an avalanche (decision of 24 February 2017, UV 2014/63). The victim undertook a ski tour with a colleague at a considerable avalanche danger level (level 3). For this purpose, he descended second on the accident slope, which was between 40° and 50° steep and interspersed with rock faces, triggering a slab avalanche which partially buried him. The victim died three days later as a result of the accident. Based on an administrative expert opinion, the court concluded that the victim, by descending the accident slope and the lack or at least deficient assessment of avalanche risk, had taken an uncontrollably high risk, i.e., an absolute risk.

3. Ski Tourer - Relative Risk

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The Administrative Court of the Canton of Schwyz confirmed the legality of benefit reductions for a self-employed winter sportsman who had got caught in an avalanche with his snowboard (decision of the Administrative Court of the Canton of Schwyz 2018 21 of 16 September 2020). The victim had objectively exposed himself to a special danger, in that he had descended into a 35° to 40° steep hollow in "free" terrain at a considerable avalanche danger level (level 3). In doing so, he had not reduced the risk to a reasonable level by taking appropriate measures, because he had not prepared sufficiently and had chosen an unfavourable route, and neither he nor the other group members had carried the emergency equipment.

E. Conclusion

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Winter sports enthusiasts must be aware that in the event of avalanches, they face the threat of benefit reductions or even benefit denials. According to the cited case law, this risk exists starting from a considerable avalanche danger level (level 3). This finding should be given all the more attention since the danger level 'considerable' prevails on every third day in winter and about half of the fatal avalanche accidents occur at this danger level (Harvey/Rhyner/Schweizer, p. 19, 135, 139).