KAMTO LUZERM

Cantonal Court

1st division

President Fankhauser-Feitknecht, Cantonal Judge Wiegandt, Cantonal Judge Windlin,

Clerk Huser

Decision from 20 September 2023

Pascal N a j a d i , Bahnhofstrasse 21, 6003 Lucerne, represented by Dr. iur. Wal- ter M.
Haefelin, Bellevue Rechtsanwälte, Rämistrasse 3, P.O. Box 1030, 8024 Zurich, Appellant

against

1. S t a a t s a nrv a I t s c h aft bi I u n g3 S u r s e e , Centralstrasse 35, P.O. Box,

6210 Sursee, Prosecuting Authority and Respondent

2. Dr. med. Pius Jakob E s t e r m a n n , born July 29, 1950, of Schötz and Hildisrieden,
Fa- denwegring 19, 6247 Schötz, Defendant and Respondent

concerning bodily injury offenses

Appeal against the non-acceptance order of the Public Prosecutor's Office Division 3 Sur-
see of April 14, 2023 (SA3 23 1698 35).

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Considerations

1.
1.1.
On March 4, 2023, Pascal Najadi (hereinafter: complainant) filed a criminal complaint against
Pius Jakob Estermann, M.D. (hereinafter: defendant) for simple bodily injury, or qualified simple
or serious bodily injury, with the Office of the Attorney General of Switzerland in Bern. In a
letter dated March 14, 2023, the Office of the Attorney General of the Canton of Lucerne
requested that it take over the proceedings, which was granted. The public prosecutor's office
department 3 Sursee was responsible for the investigation and ordered on April 14, 2023 that
the case not be taken over (investigation files [UA] Reg. 3 Bel. 1-6; KG bf.Bel. 2).

1.2.
On May 6, 2023, the complainant filed a timely appeal with the cantonal court against the order
of the public prosecutor's office not to accept the complaint, with the following claims
April 14, 2023 (KG amtl.Bel. 1 p. 2):

1. The order of the opposing party of 14 April 2023 concerning the non-initiation
of the criminal proceedings is to be annulled and the public prosecutor is to be
instructed to conduct a criminal investigation within the meaning of Art. 300
Para. 1 lit. b in conjunction with Art. 309 Para. 1 lit. a StPO. Art. 309 para. 1 lit.
a StPO in accordance with the complainant's criminal complaint of 4 March
2023 for qualified simple bodily injury in the sense of Art. 123 item 2 StGB and
for serious bodily injury in the sense of Art. 122 StGB.

2. The costs of the proceedings are to be borne by the state treasury.

3. The complainant was to be awarded appropriate compensation w i t h i n t h e

meaning of Article 429 para. 1 lit. a of the Code of Criminal Procedure.

1.3.
The Office of the Attorney General had its case heard in a submission dated May 26, 2023 and
requested that the complaint be dismissed with costs and compensation to be borne by the
complainant, who was informed accordingly. The Office of the Public Prosecutor refrained
from submitting its own opinion and agreed with the opinion of the Office of the Attorney
General (KG amtI.Bei. 9-11).

1.4.
The files of the appeal proceedings have been supplemented by the files of the lower court and
the documents submitted by the complainant (KG amtl.Bel. 2, 5, 9 p. 4, bf.Bei. 1-7). This
means that the request by the complainant for access to the preliminary files has been
executed (KG amtl.Bel. 1 p. 3 No. 5).

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1.5.
The complainant, as a party to the underlying proceedings, with a legally protected interest in
the annulment of the contested decision, is entitled to file an appeal (Art. 382 para. 1 of the
Swiss Code of Criminal Procedure; SR 312.0j). The appeal is therefore to be admitted,
especially since the other requirements for admission do not give rise to any comments.

2.
Non-acceptance orders under Art. 310 Criminal Procedure Code may be appealed by the
parties in the same way as discontinuation orders under Art. 393 et seq. Code of Criminal
Procedure (Art. 382 para. 1, Art. 310 para. 2 and Art. 322 para. 2 Code of Criminal Procedure).
The appeal may allege violations of the law, incomplete or incorrect determination of the facts
and inadequacy (Art. 393 para. 2 CCP). The appeal authority has \/olle cognition. New factual
allegations and evidence are admissible (BGE 141 IV 396 E. 4.4; BGer ruling 1B 258/2017 of
2.3.2018 E. 6).

3.
The complainant requests the opening and conduct of a criminal investigation by the public
prosecutor's office on the grounds of qualified simple bodily injury and bodily harm within the
meaning of Art. 123 No. 2 and Art. 122 of the Swiss Criminal Code (SCC; SR 311.0; KG
amtl.Bel. 1 p. 2). These are charges that are prosecuted ex officio.

The non-acceptance concerning the simple bodily injury (KG amtl.Bel. 1 p. 2) is not
contested, which is the end of the matter.

3.1.
3.1.1.
Pursuant to Art. 309 para. 1 lit. a Code of Criminal Procedure, the public prosecutor's office
shall open an investigation if sufficient suspicion arises from the information and reports of the
police, from the criminal complaint or from its own findings. It shall waive the opening if it
immediately issues a non-acceptance order or a penalty order (Art. 309 para. 4 CCP).
Pursuant to Art. 310 para. 1 CCP, the public prosecutor's office shall order non-prosecution
as soon as it is established on the basis of the criminal complaint or the police report that
the criminal facts in question or the procedural requirements are clearly not fulfilled (lit. a), if
procedural obstacles exist (lit. b) or if prosecution is to be waived for the reasons stated in
Art. 8 CCP (lit. c). The question of whether criminal proceedings can be settled by non-
prosecution is assessed according to the principle of "in dubio pro duriore" derived from the
principle of legality (Art. 5 para. 1 of the Federal Constitution of the Swiss Confederation
[Bundesverfassung der Schweizerischen Eid- genossenschaft |BV; SR 101s] and Art. 2 para. 1
Criminal Procedure Code in conjunction with Art. 310 para. 2, Art. 319 para. 1 and Art. 324
para. 1 Criminal Procedure Code). Accordingly, based on Art. 310 para. 1 lit. a Code of Criminal
Procedure, the public prosecutor may only refuse to take evidence in cases where the facts of
the case and the law are clear.

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 cases. This does not change the fact that the factual indications of a criminal act required for
the opening of a criminal investigation must be substantial and concrete in nature and mere
rumors or suspicions are not sufficient; the initial suspicion should have a plausible factual
basis from which the concrete possibility arises that a criminal act has been committed
(BGE 143 IV 241 E. 2.3.2; BGer judgments 6B 724/2021 of 10.1,2022 E. 3.1, 6B 700/2020
of 17.8.2021 E. 3.3, 6B 472/2020 of 13.7.2021 E. 2.2.1)
According to the Federal Supreme Court, a "medium level of suspicion" is required (Federal
Supreme Court ruling 6B 726/2021 of 25.5.2022 E. 2.1). In case of doubt, if the reasons for
non-acceptance are not given with sufficient certainty, the proceedings must be opened. The
principle of "in dubio pro duriore" must be applied in consideration of the circumstances of the
individual case. In this respect, the public prosecutor's office and the appellate authority have a
certain leeway, which the Federal Supreme Court reviews only with restraint (E. 4.1.2; BGer
judgments 6B 67/2022 of 24.10.2022 E. 2.3.1, 6B 291/2022 of 4.5.2022 E. 3.1)

3.1.2.
According to Art. 123 No. 2 SCC, anyone who commits the act using poison is prosecuted
ex officio for simple bodily injury.

The offense of grievous bodily harm under Article 122 of the Criminal Code is committed by
anyone who intentionally causes life-threatening injury to a human being (para. 1), mutilates
the body, an important organ or limb of a human being or renders an important organ or limb
unusable, renders a human being permanently incapacitated, infirm or mentally ill, disfigures
the face of a human being badly and permanently (para. 2), causes other serious damage to
the body or physical or mental health of a human being (para. 3).

A person commits a felony or misdemeanor intentionally if he carries out the act with
knowledge and will. It is already intentional if the perpetrator considers the realization of the
act possible and accepts it (Art. 12 para. 2 StGB). According to established case law,
contingent intent is given if the perpetrator considers the occurrence of the success or the
realization of the offense to be possible, but nevertheless acts because he accepts the
success in the event of its occurrence, accepts it, even if it is undesirable to him (BGE 147 IV439
E. 7.3.1; BGer judgment 6B 1104/2022 of 19.4.2023 E. 1.1.2).

3.2.
Insofar as the appellant does not address the specific statements in the contested order in
the appeal, this is not to be considered (KG amtl.Bel. 1 Ziff. 10-12, 14-17).

3.3.
Contrary to the statements in the complaint (KG amtI.Bei. 1 Ziff. 6), the public prosecutor's office
did not only deal with the accusation of simple bodily injury in the contested order, but also
dealt with the other accusations. From the

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 It is clear from the order of non-admissibility that the incident was not based on any criminally
relevant conduct or that the reported qualified bodily injury offenses were clearly not fulfilled.
The public prosecutor's office provided sufficient justification for this. The information sheet
on general information on the Covid 19 vaccination of the Federal Office of Public Health
(FOPH) clearly states that vaccinations in Switzerland are voluntary and that there is no
obligation to vaccinate. There is therefore no so-called vaccination compulsion. In addition,
every vaccine in Switzerland requires approval and a recommendation. Thus, the vaccines
against Covid-19 had also undergone a review and approval procedure at the Swiss Agency
for Therapeutic Products Swissmedic (hereinafter: Swissmedic). The lege artis performed
vaccination as such is an intervention in the physical integrity, which is, however, justified by
the consent of the patient. In practice, the persons willing to be vaccinated were informed by
trained specialists about possible side effects before the Covid-19 vaccination. Subsequently,
the identity and voluntariness had been confirmed and the declaration of consent had been
given (KG bf.Bei. 2 E. 2). The complaint of the complainant is therefore unjustified.

3.4.
3.4.1.
The complainant further complains that apart from the question about existing allergies and
medications taken, no exchange of information took place between the physician responsible
for the vaccination and him. There could be no question of the mandatory informed consent to
the invasive body intervention, i.e. to a body injury. Furthermore, the complainant had neither
been informed about the effectiveness of the Covid vaccination, i.e. the immunization and
infectivity, nor about potential side effects or possible damage to health - neither orally nor in
writing. The defendant had certainly not requested written consent from the complainant after
being informed (KG amtI.Bel. 1 Ziff. 8). Thus, the complainant claims that he was not
sufficiently informed about the risks of the Co\/id-19-1munition and that the defendant did not
obtain a written consent after he had been informed.

In its opinion, the Office of the Attorney General counters these statements without
contradiction by stating that the Covid vaccinations carried out in the vaccination centers of
the Canton of Lucerne were carried out according to a concept specified by the Health and
Sports Department, in which information about risks and side effects as well as a clarification
of special individual risks by trained specialists were integrated within the framework of the
standardized procedure, in particular based on information from the FOPH. The confirmation
of the voluntary nature of the vaccination was, moreover, based on the fact that the
vaccination was not compulsory, on the declaration of consent (KG amtl.Bel. 9 Zu Ziff. 8).

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 The Cantonal Court considers these statements to be correct. The CoVid-19 vaccination was
and is voluntary. However, even in the case of a voluntary vaccination, sufficient risk
information is required, even if the vaccination is publicly recommended, in order for the
consent to a vaccination to be effective. In principle, the person concerned must be informed
about the nature and risks of the proposed vaccination in such a way that he or she can give
informed consent. Unless it is a matter of everyday measures that do not involve any
particular danger and no definitive or prolonged impairment of physical integrity (BGE 117 Ib
197 E. 3b). The latter is admittedly not the case here. However, in connection with the
complainant's explanation at the Willisau vaccination center, the complainant merely
contrasts his view of the course of the vaccination with that in the contested order, which is
not sufficient. The complaint does not specifically show how the reasoning in the contested
order, according to which persons willing to be vaccinated were informed about possible side
effects by trained specialists prior to the Covid 19 vaccination - for example, prior to the
registration at the counter - whereupon the identity and voluntariness were confirmed and the
declaration of consent was given, should be incorrect (KG amtI.Bei. 1 Ziff. 8, 15).

The mRNA vaccine to which the complainant refers (KG amtl.Bel. 1 Zi(f. 12) was also approved
by the European Medicines Agency (EMA), among others. After careful consideration of the
benefits and risks in the full evaluation, Swissmedic also granted approval for the first
Covid 19 vaccine on December 19, 2020. Whether the conditions for the temporary
approval of the Covid-19 vaccines had never been met or whether the granting and
maintenance of the same by Swissmedic was simply unlawful, as stated in the complaint (KG
amtl.Bel. 1 Ziff. 11, 15), is not relevant for the assessment of the criminal liability of the
defendant, since physicians were allowed to rely on recommendations and information of the
FOPH and Swissmedic. Their primary aim is to \/prevent serious illnesses and not to inflict
harm. The same applies to the statements in the complaint regarding the Covid-19 vaccination
as mRNA gene therapy and human experimentation as well as the state of knowledge regarding
mRNA vaccines (KG amtl,Bel. 1 Ziff. 12, 14).

The complainant seems to assume that the vaccinating physician would have had to conduct a
mandatory detailed medical information discussion with each person registered for the
vaccination (KG amtl.Bel. 1 Ziff. 13, 15). In addition to the specialist information, there were
and are other documents available to the public on the subject of Covid-19 vaccination, which
were prepared not only by the FOPH, but also by \/different specialist bodies such as the
cantonal health departments. In particular, the FOPH's leaflet on general information on
Covid 19 vaccination and its detailed homepage mentioned in the contested order should be
mentioned. Such written information has the advantage of a precise, detailed and in this case
also updated description of the subject matter of the information. The studies and
investigations concerning Covid-19 vaccination ran parallel to the Corona waves. Accordingly,
the research committees had good conditions and

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could investigate whether diseases with symptoms are prevented or the severity is reduced.
Compared to other drugs and vaccines, the Covid 19 vaccine, together with the subsequent
experience with a large number of vaccinated persons, has a good scientific basis, although
naturally not all rare side effects could be known in detail at the beginning. In view of the easily
accessible and intensively disseminated information in the media, it could be assumed that
those who voluntarily vaccinated already had a certain amount of information.

In addition, the complainant could have obtained further Covid 19 information at the time in
the vaccination center in Wil- lisau in conversation with the defendant. In any case, he does
not claim to have asked the latter any questions (KG amtI.Bei. 1). It seems true to life for a
physician to speak briefly with a vaccine-affected patient before administering the vaccine and
to give the patient the opportunity to ask questions. In view of the broad public discussion at the
time, the hotlines of the federal government and the cantons, the high level of information
about the Covid 19 vaccination in the public and the public recommendation of the Covid 19
vaccination, the defendant was entitled to conclude from the complainant's silence that there
was no need for further clarification. Viewed as a whole, it is established that the complainant
must have been sufficiently informed about the Covid 19-1 vaccination also on the basis of the
broadly supported public Covid information campaign at that time and that he had the
opportunity to ask specialists or the accused further questions, which is why the complainant's
assertion that his consent was based on an error of fact is invalidated (KG amtl.Bel. 1 Ziff.
13). The defendant is therefore not accused of any criminal conduct.

3.4.2.
The complainant is of the opinion that the deterioration of his state of health in 2022 was due
to the Covid-19-1 vaccination. In doing so, he refers to Prof. Sucharit Bhakdi, MD, PhD, who
comments on the blood analyses concerning the complainant and concludes on the basis of
the mRNA substance, which consists of life-threatening toxic properties, that the
complainant suffered a life-threatening injury. The test results would clearly indicate that the
complainant suffers from an irreparable long-term disease caused by the injected mRNA
product manufactured by Pfizer/Biontech. All available scientific evidence - namely the
significant reduction of ATP levels as well as an increase of the marker for systemic
inflammation (CRP) - indicates that Pfizer/Biontech's Covid injections shortened the
complainant's life expectancy (KG amtI.Bei. 1 Ziff. 9 f., bf.Bel. 4-7).

It should be noted at the outset that the opinion of Prof. em. Dr. med. Sucharit Bhakdi of the
March 19, 2023 contains an assessment of the mRNA vaccination from his point of view and
without concrete reference to the complainant and it is not shown that he had health data of the
complainant from the time before the vaccination at his disposal. Prof.

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 em. Dr. Sucharit Bhakdi, MD, is not able to prove with certainty a causal relationship
between the health impairment of the complainant and the Covid 19 vaccination. Even if there
is no reason to doubt the accuracy of the laboratory data collected, the report of Prof.
Sucharit Bhakdi, MD, PhD, does not show a causal link between the vaccine administered
and the laboratory values found. Instead, he limits himself to the estimation of probabilities
that allow for possible other causes for the complainant's claimed illness. It is known that Long
Covid symptoms can be triggered not only by the vaccination but also by the infection itself.
The complainant does not shed light on this aspect in the complaint (KG amtl.Bel. 1).
Accordingly, it is not known whether he suffered the infection despite the Covid 19
vaccination and whether the Long Covid symptoms may be due to a Covid disease. The
statement of Prof. em. Dr. med. Sucharit Bhakdi does not deal with this issue, but his
statements refer unilaterally to the Covid 19 vaccination as the cause for the alleged Long
Covid disease of the complainant, which speaks against an objective view of the disease
situation of the complainant. Moreover, according to the constant jurisprudence of the
Federal Supreme Court, the statement is a party opinion, which does not have the quality of
evidence, but of a mere party assertion (BGE 141 IV 305 E. 6.6.1; BGer judgments 6B
310/2021 of 5.10.2022 E. 3.4.2, 6B 1424/2020 of 31.1.2022 E. 1.2). According to the irrefutable
According to the presentation of the Office of the Attorney General in its consultation (KG amtl.Bel. 9
Regarding point 9), the theses of Prof. em. Dr. med. Sucharit Bhakdi are very controversial in
medical science and therefore correspondingly questionable. As part of the party's
submissions, the above-mentioned opinion is of little probative value either way, since on the
one hand private experts are regularly instructed by a party, are in a contractual relationship
with the party and therefore have to protect the party's interests. On the other hand, they are
also not subject to the penal consequences according to Art. 307 StGB in connection with Art.
184 para. 2 lit. f StPO. Furthermore, as mentioned above, it has not been shown on the
basis of which information the statement was drawn up.

3.4.3.
Finally, it is not necessary to deal with the remarks made by the complainant regarding the
fulfillment of the elements of the offense concerning the alleged bodily injury offenses (KG
amtI.Bel. 1 Ziff. 16 f.), since the only issue at hand is whether the contested order should be
set aside and the criminal case referred back to the public prosecutor's office for the purpose
of opening a criminal investigation against the defendant. In any case, there would be no
reason to examine whether the facts of the case are in order, since no criminal conduct on
the part of the defendant has been established.

3.5.
The appeal must therefore be dismissed insofar as it is to be admitted.

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4.
The costs of the appeal proceedings shall be borne by the parties in proportion to their
success or failure. (Art. 428 para. 1 Code of Criminal Procedure; Federal Supreme Court ruling 6B
1496/2020 of 16.12.2021 E. 5.2 with references).

The fee before the Cantonal Court is set at Fr. 1,800.00 in application of § 1 para. 1 and § 21
lit. b of the Ordinance on Costs in Civil, Criminal and Administrative Proceedings (JusKV; SRL
No. 265; cost range: Fr. 500.00 to Fr. 5,000.00) and taking into account that two practically
identical cases were to be judged. The costs will be charged to the unsuccessful appellant.

The decision on costs prejudices the question of compensation. Accordingly, those who
prevail in the appeal proceedings are in principle entitled to compensation; those who are
unsuccessful must bear their own expenses (BGE 137 IV 352 E. 2.4.2; Wehrenberg/Frank,
Basler Komm., 3rd ed. 2023, Art. 436 StPO N 6).

Accordingly, the complainant must bear his own expenses. The defendant did not incur any

expenses in the appeal proceedings.

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Accordingly, the cantonal court decides:

1.
The appeal is dismissed insofar as it is upheld.

2.
The court fee in the appeal proceedings of Fr. 1'800.-- will be offset against the security deposit
made by the appellant in the same amount.

No compensation is paid.

The costs award of the lower court is confirmed, according to which the costs are to be borne by

the State. 3.
An appeal in criminal matters against this decision may be lodged with the Federal Supreme
Court, 1000 Lausanne 14, within 30 days in accordance with the provisions of the Federal
Supreme Court Act. The notice of appeal must be submitted in duplicate. It must contain a
request and the reasons for it. The contested decision and the documentary evidence must be
enclosed.

4.
This resolution shall be served on:
- Parties
- Attorney General's Office

Cantonal Court
1st division

nkhauser- Huser
Feitknecht Court clerk
President

Shipping:

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