INPUT

KAOTOM LUZERM
Cantonal Court

1st division

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

Huser

Decision from 10 October 2023

Pascal N a j a d i , Bahnhofstrasse 21, 6003 Lucerne, represented by Dr. iur. Wal- ter M. Haefelin,
Bellevue Attorneys-at-Law, Rämistrasse 3, P.O. Box 1030, 8034 Zurich, Appellant

against

1. S t a a t s a n rv a I t s c h a f t D e s c r i p t io n 3 Sursee,
Centralstrasse 35, P.O. Box, 6210 Sursee, Prosecuting Authority and Respondent

2. Dr. Hans B ü h I m a n n , Industriestrasse 10a, 6102 Malters, defendant and respondent

concerning bodily injury offenses

Appeal against the non-acceptance order of the Public Prosecutor's Office Division 3 Sur- see
dated April 14, 2023 (SA3 23 1697 35).

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Considerations

1.
1.1.
On March 4, 2023, Pascal Najadi (hereinafter: complainant) filed a criminal complaint
against Hans Bühlmann, M.D. (hereinafter: defendant) for simple bodily injury, or possibly
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.
1-8; KG bf.Bel. 2).

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

1. The respondent's order of 14 April 2023 concerning the non-initiation of the

criminal proceedings is to be annulled and the public prosecutor's office is to be
instructed to conduct a criminal investigation within the meaning of Art. 300
Para. Art. 300 para. 1 lit. b in connection with Art. 309 para. 1 lit. Art. 309
para. 1 lit. a StPO in accordance with the complainant's criminal complaint
of March 4, 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.

3. The complainant was to be awarded appropriate compensation within the

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 a statement of its own and concurred with the opinion of the Office of the
Attorney General (KG amtl.Bel. 7-9).

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 amtI.Bei. 2, 5, 8 p. 4, bf.Bel. 1-7).
This means that the request by the complainant for access to the preliminary files has been
executed (KG amtl.Bei. 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 the present appeal (Art. 382
para. 1 of the Swiss Code of Criminal Procedure [CCP; SR 312.0]). 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 be lodged against violations of the law, incomplete or incorrect determination
of the facts and inadequacy (Art. 393 para. 2 Code of Criminal Procedure). The appeal
authority has full cognition. New factual allegations and evidence are admissible (BGE 141
IV 396 E. 4.4; BGer ruling 1B 258/2017 \/Om 2.3.2018 E. 6).

3.
The complainant is requesting the opening and conduct of a criminal investigation by the public
prosecutor's office for qualified simple bodily injury and serious bodily injury 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 amtI.Bei. 1 S. 2) is not
contested, which is the end of the matter.

3.1.
3.1.1.
Pursuant to Art. 309 para. 1 lit. a CCP, the public prosecutor's office shall open an
investigation if the information and reports of the police, the criminal complaint or its own
findings give rise to sufficient suspicion. It shall waive the opening if it immediately issues a
non-prosecution 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 [BV; SR 101] and Art. 2 para. 1 CCP in
conjunction with Art. 310 para. 2, Art. 319 para. 1 and Art. 324 para. 1 CCP). According to this,
the public prosecutor may only refuse to hear a case on the basis of Art. 310 para. 1 lit. a Code
of Criminal Procedure 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 VOm 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 i s prosecuted ex
officio for simple bodily injury.

The offence of grievous bodily harm under Article 122 of the Criminal Code is committed by
anyone who intentionally causes life-threatening injury to a person (para. 1), mutilates the body,
an important organ or limb of a person or renders an important organ or limb unusable, renders
a person permanently incapacitated, infirm or mentally ill, disfigures the face of a person badly
and permanently (para. 2), causes other serious damage to the body or physical or mental
health of a person (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 complainant does not address the specific statements in the contested order in
the appeal, this is not to be considered (KG amtl.Bei. 1 Ziff. 10-12, 14-17).

3.3.
Contrary to the statements in the complaint (KG amtl.Bel. 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 leaflet on general
information on the Covid-19 vaccination of the Federal Office of Public Health (FOPH) clearly
states that vaccinations are voluntary in Switzerland and that no vaccination is required. There
is therefore no so-called lmpf- zwang. 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 vaccination as such is an interference with 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 of existing allergies and
medications taken, no exchange of information took place between the physician responsible
for the vaccination and the complainant. In the present case, 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 amtl. Bel. 1 Ziff. 8). Thus, the
complainant claims that he was not sufficiently informed about the risks of the Covid-19
vaccination and that the defendant did not obtain a written consent after he had been informed.

In its statement, the Office of the Attorney General counters these remarks 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 procedure was also evident from the fact that the declaration
of consent was not compulsory (KG amtI.Bei. 8 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 lb
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 Ziff. 12) was also approved
by the European Medicines Agency (EMA), among others. After careful consideration of
benefits and risks in the rolling review, 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. 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 various specialist bodies such as the
cantonal health departments. In particular, the leaflet on general information on Covid 19
vaccination from the FOPH 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 medicines and vaccines, there is a good scientific basis for the Co\/id-19
vaccine, together with the subsequent experience with very many vaccinated persons,
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, it must be added in the present case that the complainant could have obtained
further Covid 19 information at the time in the lmpf center in Wil- lisau in conversation with
the defendant. In any case, he does not claim to have asked the latter any questions (KG
amtl.Bel. 1). It seems true to life that a physician speaks briefly with a vaccine-affected patient
before administering the vaccination and gives 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 vaccination also on the basis of the then widely supported public Covid
information campaign 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 amtI.Bei. 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 vaccination. He refers to Prof. em. Dr. med. Sucharit Bhakdi, 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 has
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 in ATP levels and an increase in the marker for systemic inflammation (CRP) -
indicates that Pfizer/Biontech's Covid injections shortened the complainant's life expectancy
(KG amtl.Bel. 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. med. Sucharit Bhakdi is not able to prove with certainty a causal connection
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. em.
Dr. med. Sucharit Bhakdi 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.Bei. 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. 8
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 statements made by the complainant regarding the
fulfillment of the elements of the offense regarding the physical injury offenses (KG amtl.Bel. 1
Ziff. 16 f.), since the only issue at stake in this case is whether the contested order should be
rescinded 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 Criminal Procedure Code; 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 decision 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. 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

Für\khauser-Feitknecht Huser
President Court clerk

' '' ! '

Shipping:

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