After the avalanche accidents at danger level 4 in the high winter of 09/10, the discussion about possible criminal prosecution of freeriders and tourers has once again flared up in the media. Lawyer and mountain guide Dr. Stefan Beulke explains the extent to which freeriders can expect criminal prosecution in the event of an avalanche accident, despite proper planning and appropriate behavior during a tour and although avalanche accidents are fortunately very rare - an accident can never be ruled out. This is a terrible situation for everyone involved - in addition to the question of one's own guilt, there may be concern for injured friends or even grief over their death. If people are injured or killed in an avalanche accident, the responsible police authority is obliged to investigate the reasons and causes of the accident. And these investigations actually take place. In both Germany and Austria, for example, there are specially trained police officers who are deployed to investigate mountain and avalanche accidents. It can be assumed that practically every avalanche accident resulting in personal injury (bodily harm or death) leads to a criminal investigation.
The subject of this investigation is the question of whether the avalanche accident was caused by the culpable misconduct of one or more persons and whether these person(s) can therefore be held criminally liable.
The criminal law considerations can be very difficult to understand in detail and difficult for a legal layperson. Not every avalanche accident is a criminal offense. At the same time, however, one must abandon the misconception that the legal rules of the game in high mountains are fundamentally "different" from those that apply in road traffic or on the sports field, for example. Unfortunately, mountain accidents are relatively often decided by lawyers who still have a relatively good idea of road traffic and at least a little memory of a sports field from their youth, but have never heard of "freeriding". That doesn't make things any easier, but it does make them all the more unpredictable. As current legal practice varies depending on the case and the Alpine country in which the accident occurred, only a few general tips and information can be given here The following is therefore an attempt to outline the range of criminal law issues with the help of typical case groups.
Own endangerment, endangerment of others and injury to third parties
Every freerider can endanger themselves at will without being blamed for it. Anyone who thinks they can get by without an avalanche report and avalanche transceiver set, and believes that warning notices and closed signs only apply to others, is engaging in original, albeit completely stupid, risk management. However, this is not fundamentally illegal under criminal law - as long as nothing happens. Whether this is a sensible way of dealing with the problem is a completely different question.
However, the principle also applies here: no rule without exception. In Italy, the legal situation stipulates that even endangering the ski slopes is a criminal offense. Anyone who culpably, i.e. at least negligently, triggers an avalanche in the open ski area that hits a ski slope below is liable to prosecution - even if no skiers are injured or even killed on the ski slope. If a skier is injured or even killed by the avalanche, the potential criminal liability of the freerider should be obvious to everyone - provided the freerider triggered the avalanche negligently.
When has an avalanche been triggered negligently?
This question cannot be answered in general terms and the lawyer usually starts with the introductory sentence: "It depends on whether ?". This question can only be answered by taking into account all the circumstances of the individual case. However, one thing is clear: The longer highly qualified experts deal with the subject of avalanche danger, the more intensively alpine institutions offer training and further education and the better the avalanche situation reports and risk management methods for assessing avalanche danger become, the more difficult it will be to qualify the individual avalanche descent as a completely unforeseeable event that could not have been recognized and therefore avoided even with careful tour preparation and tour planning. In other words: If you want to claim after an accident that the avalanche was unforeseeable and therefore not caused by negligence, you already need good arguments, e.g. a favorable avalanche situation report and a positive risk check according to one of the recognized risk management methods (e.g. Munters 3x3 & reduction method or stop-or-go). If you are in the "green zone" after these information and checks, there is also a very high probability that you will be able to refute the accusation of negligent behavior in the event of an avalanche accident.
Community of danger and de facto guides
If freeriders are traveling together in the backcountry or freeride area, this may constitute a so-called community of danger. A community of danger exists if the group participants have essentially the same level of knowledge and training and can therefore assess the risks essentially equally well. In this case, every freerider is responsible for themselves and, in the event of an avalanche accident, also "at their own fault".
This is, however, a rather theoretical ideal case. In practice, things are often different. It is not uncommon for one of the group members to take on the role of "guide". Often such a "leader" has no sound training whatsoever, only his willingness to take risks and his sporting abilities, possibly in conjunction with a "leader wolf mentality", make him a leader. Whether he is then actually a "guide" in the legal sense, who is also responsible for the safety of the other freeriders in the group, always depends on the circumstances of the individual case. Not everyone who puts on a cool performance or is the best rider in the group has to take the rap under criminal law if something happens. However, it is important to know that there is also the so-called "de facto leader", who may very well have an increased responsibility towards the other group members. Factual guides can, for example, be people who, due to their training and experience, e.g. as snowboard or ski instructors, take friends and other people into the mountains on a non-commercial basis. Their companions assume that they will be guided safely by their "guide". A typical case is the "persuasion" of a less experienced "freerider" to take on a challenging off-piste descent on the grounds that, as an "experienced" freerider, you have "everything under control" and that the other person can rely on everything being OK. This creates trust in the other person's safety - and this trust obliges the actual guide to offer the promised safety. this does not mean that you can no longer go freeriding with your friends just because you have completed a freeriding course, for example, if they have no training. However, if you promise your friends safety with an explicit reference to your own training, you must also be aware that they can rely on the announcement - and may rely on it according to the recognized legal principles. Anyone who entrusts themselves to a de facto guide is no longer acting on their own responsibility, but is relying on the de facto guide's risk management.
Commercially guided tours
If you join a guided tour, e.g. a freeride course, snowboard or ski tour, you are entrusting yourself to a specially trained specialist: the state-certified mountain and ski guide. They are responsible for the safety of their paying guests. However, it is important to be aware that even a mountain guide cannot offer their customers 100% safety, as it is well known that this never exists in the mountains.
Equipment
The question of the "right" equipment is not only an ongoing topic in the alpine safety debate, but also a "classic" in the legal processing of mountain and avalanche accidents. Anyone who has not used sufficient equipment is negligent if the accident could have been avoided with the "right" equipment or if at least the consequences of the accident would have been less dramatic.
The question of equipment only becomes relevant, however, when a person is liable for the consequences of the accident because they were responsible for the safety of another person due to special circumstances. If I'm alone in the terrain without an avalanche transceiver, that's entirely my problem, especially if I get buried. If two experienced mountain guides spontaneously decide to start a day of piste skiing with a variant descent in fresh deep snow, even though they have no avalanche transceivers with them, that is their free decision. And if one of the two is buried by a snow slab and subsequently cannot be located and rescued by his colleague, you can only say - bad luck, but not punishable.
However, anyone who is responsible for third parties, whether as a "de facto guide" or as a "proper" guide, is also responsible for selecting and carrying the necessary safety equipment, including an appropriate functional check. The standard is the avalanche transceiver set, consisting of an avalanche transceiver, probe and shovel. The person responsible should also know how to use the safety equipment, as every second counts in the event of an avalanche burial.
Practical recommendation
Regardless of the question of legal risks, you should always think carefully about who you go freeriding with or who you take with you. The competence and equipment of the other person is your own back-up. Many people are outstanding in the fun park or at the snow bar. However, a good freerider also needs other qualities such as responsibility and risk awareness, reliability and competence as well as "snow know-how", intuition, caution and restraint, i.e. smart "risk management".
Dr. Stefan Beulke
has been a lawyer since 1990 and a state-certified mountain and ski guide since 1985. He was 2nd Chairman of the VDBS (Association of German Mountain and Ski Guides) from 1992 to 2003.
As a lawyer, he specializes in mountain and ski accidents.
