§ 1 Criminal Law - DRAFT
Criminal Law - DRAFT
§ 1 Swiss Criminal Code of 21 December 1937
1st History
The first comprehensive codification of criminal law in Switzerland – the Code pénal de la République helvétique 1799 – was inspired by the ideals of the French Revolution, such as equality in sentencing and the abolishment of general confiscations.[1] After the decline of the Helvetic Republic in 1803 the cantons gained back their right to issue their own criminal codes. Freiburg reintroduced the Constitutio Criminalis of Emperor Carl V of 1532 («Carolina»).[2]
Switzerland as we know it today was founded in 1848 in the aftermath of the Sonderbund war, a civil war between catholic and protestant cantons. The seven catholic cantons who formed the Sonderbund opposed the impending centralization of Switzerland because they feared that their interests would be marginalized by the majority of protestant cantons. Although the protestants prevailed in the Sonderbund war, it is the lasting legacy of the Swiss founding fathers – and especially of the president of the constitutional convention Ulrich Ochsenbein[3] – that the interests of the defeated were taken into account too. Hence, not a central Swiss Republic but the Swiss Confederation emerged from this conflict.
Ulrich Ochsenbein, 1811-1890 (source: www.britannica.com)
One of the main features of this federal system is the autonomy of the 25 cantons (i.e. federal states). The cantons kept their legislative independence. So even after Switzerland was founded as a modern federal state the cantons retained their own criminal codes.[4] Considering the size of the cantons – Glarus even today has a mere 40.000 inhabitants – this variety of criminal codes proved to be very inefficient. Therefore the Swiss Lawyers Association at its general assembly of 1887 held that an «efficient and successful fight against crime is not possible as long as the fragmentation of cantonal criminal codes persists»[5].
2nd Legislation
The Swiss Federal Council then mandated Carl Stooss, a professor of criminal law at the University of Berne, to draw up a comparative compendium of all the cantonal criminal codes.[6] In 1892 Carl Stooss published his comparative analysis. He pointed out that the foundations of Swiss criminal law were «quite cosmopolitan», drawing from Romanic and German sources.[7] While the French influence of the Code pénal of 1799 persisted in the cantons of the «Romandie» (western, French-speaking part of Switzerland), the codes of the central and eastern (German-speaking) cantons were more inspired by the Austro-Hungarian Codification.[8]
Carl Stooss, 1849-1934 (source: ZStrR 43/1912)
Interestingly three cantons were missing in Carl Stooss‘ compilation: Uri, Unterwalden and Appenzell I.R. For these small cantons had no formal criminal codes and only a few written sources of law at that time.[9] Freiburg, as mentioned, relied on the «Carolina». The inventory of the codes was focused on what was viewed as the core of the criminal law (murder, assault, theft, fraud, rape etc.). The minor «police offences» (vagrancy, begging, alcoholism, gambling & lottery) were left out. The cantonal rules on the death penalty became a part of the compilation even though capital punishment was already highly controversial.
In 1893 Carl Stooss published the first draft of the criminal code. At that time nobody anticipated that the legislative procedure would last a «record-breaking»[10] 50 years! Until 1916 three commissions of experts would deliberate on various drafts of the code, in 1918 the Swiss Federal Council handed its dispatch (White Paper) to Parliament. Only ten years later, in 1928, the Federal Assembly entered the debate and kept deliberating for another ten years. Finally, on 21 December 1937 the Swiss Criminal Code was adopted. Staunch federalists opposed it because in their eyes a unified codification for Switzerland undermined cantonal autonomy in the crucial field of criminal law. Catholic groups opposed the Code because it legalized (medically warranted) abortions. The abolition of the death penalty remained controversial too.[11] The Code was thus put up to a referendum. On 3 July 1938 a slim majority of 53.5% of the electorate accepted the new criminal code.[12] It came into force on 1 January 1942.
3rd Content
In Swiss law there are three types of offences: felonies, misdemeanours and contraventions. Felonies are offences that carry a custodial sentence of more than three years, the maximum custodial sentence usually being 20 years. Some felonies (e.g. murder, aggravated hostage-taking) carry a life sentence (Article 40 CC/CH). Misdemeanours are offences that carry a custodial sentence not exceeding three years or a monetary penalty (Article 10 CC/CH). Monetary penalties are composed of penalty units. The quantity of the units (max. 360) reflects the culpability of the offender, the amount of the unit (CHF 10 – 3’000) their financial situation. Contraventions are criminal acts that are punishable by a fine (Article 103 CC/CH). The maximum fine is usually CHF 10.000.– (Article 106 CC/CH).
The Swiss Criminal Code contains 392 Articles. It is divided up in three books. Book I (Art.1–110) mainly regulates the general provisvions on criminal liability (omissions,[13] intention and negligence, justifications, guilt, responsability, attempt and participation) and sanctions (custodial sentences, monetary penalties, suspension of sentences, parole, therapeutic measures, indefinite incarceration). By introducing a general part that sets up the common elements of crime «before the brackets» the Swiss legislator followed a long tradition. The Italian Renaissance jurist Tiberio Deciani (1509–1582) is credited to have invented the idea of splitting up criminal codes in general and specific parts in his Tractatus Criminalis of 1590.[14] Earlier criminal codes such as the Carolina (1532) only contained specific, casuistic provisions.[15] General parts allowed criminal codes to be much shorter. Through the technique of regulating general rules for all crimes they also served the needs of the nulla poena sine lege principle by avoiding gaps in criminal liability that had otherwise to be filled by analogy. In addition, by predetermining liability in a general manner the legislator hoped to minimize the influence of courts and academics on the interpretation of criminal codes.[16]
Book II covers the specific provisions (Art. 111–332), i.e. criminal offences protecting individual interests such as life and limb (murder, assault), property (theft, fraud), honour (defamation), liberty (coercion, hostage taking, unlawful entry) or sexual integrity (rape, exploitation, pornography, sexual harassment) as well as criminal offences protecting collective interests such as families (incest, bigamy), public safety (arson), public health (transmission of diseases), public order (rioting, criminal organisations, racial discrimination), genocide and war crimes, trading interests (counterfeiting, forgery), national security (high treason, espionage), judicial interests (false accusation, money laundering, perjury) and state interests (abuse of public office, bribery).
Book III (Art. 333–392) deals with the introduction and application of the Swiss Criminal Code. Road traffic offences, drug crimes and illegal use of weapons all form part of specific federal codes.[17]
Three particularities of the Swiss Criminal Code will be highlighted hereafter: the dualism of sanctions (1), the abolishment of the death penalty (2) and the rules on euthanasia and assisted suicide (3).
4th Dualism of Sanctions
Sanctions are the consequences imposed for criminal acts. In Switzerland there are two main categories of sanctions: sentences and measures. Sentences (monetary penalty, custodial sentence, fines) are retributive in nature.[18] They are mainly backward-looking: Their aim is to reprimand offenders for their wrongdoing and to impose punishment on them. Measures on the other hand are preventive in nature. They are mainly forward-looking: They are designed to protect society from dangerous offenders by either curing them from mental deficiencies or addictions (therapeutic measures) or by permanently incapacitating them (indefinite incarceration).
This dual system of sanctions was Carl Stooss’ invention.[19] He was universally acclaimed for this idea and his dualism of sanctions was soon adopted by other jurisdictions.[20]
Carl Stooss’ new concept was so successfulbecause it appeased one of the most fierce debates ever in criminal law: Throughout the 18th and 19th century scholars fought over the very legitimacy of criminal punishment. Why may the state inflict harm upon offenders? There were three possible answers: (1) Because they deserve it, i.e. just desert.[21] (2)Because it will teach them a lesson for the future, i.e. special prevention.[22] (3) Because it will deter all the others from offending as well, i.e. general prevention.[23]
Just desert theories of punishment are only about retribution for past acts. They are also called absolute theories because according to them punishment is absolved from serving any future societal goals. Special and general prevention on the other hand are relative theories because punishment always has to relate to future societal goals (deterrence, safety etc.). These fundamentally different views on punishment led to two opposing schools of thought. The classical school around Karl Binding (1841-1920) advocated that punishing must and can only be about retribution. Sentences are imposed because offenders need to get their just deserts for their crimes. The modernists championed (special) prevention as the main goal of criminal punishment. One of their strongest advocates, Franz von Liszt (1851-1919), opposed retribution in his main oeuvre on ‘Purpose in Criminal Law’ (1882). Therein he asserted that punishment must serve to either heal offenders, to scare them straight or to permanently incapacitate them.[24] Both schools had legitimate points: The classicals rightly pointed out that prevention turned offenders and thus autonomous human beings into mere objects that are formed according to societal needs (special prevention) or used to make an example for the public (general prevention). The modernists were right in claiming that punishment cannot be detached from its effects. It must also serve societal ends such as the reintegration of offenders.[25] They therefore advocated new institutions like the installment of fines, parole, educational prison schemes, pedagogical rather than punitive sanctions for young offenders and the protection of society from dangerous offenders.[26]
Carl Stooss‘ landmark achievement was to accommodate both schools in his dual system of sanctions. Sentences should serve retribution,[27] measures have to serve societal ends like resocialisation or the need for safety from dangerous offenders.
5th Death Penalty
Today the death penalty is prohibited (Article 10 I Const.). In 2002 Switzerland has ratified Protocol No. 13 to the ECHR concerning the abolition of the death penalty in all circumstances.
Throughout the Middle Ages to the modern times the death penalty was common in this country. Switzerland holds the sad record to be the last country in Europe to have executed a person for witchcraft. On 13 June 1782 Anna Göldi was beheaded immediately after the council of Glarus had convicted her. Witchery she had, of course, only confessed under torture.
Later, both the Code pénal of 1799 and the cantonal criminal codes of the early 19th century contained the death penalty for crimes like murder, aggravated robbery or arson. Beheading by sword or guillotine was the most common means of execution.[28] Under the impression of enlightenment thinkers like Beccaria or Voltaire the Federal Constitution of 1848 banned the death penalty for political crimes. In the following decades several cantons (FR, NE, ZH, TE, GE, BS, BL, SO) entirely abolished it. In 1874 Article 65 of the federal Constitution issued a total ban. Yet this prohibition only lasted for a couple of years. After a series of murder cases in the late 1870s the ban on the death penalty was revoked by popular vote.[29] Henceforth the death penalty, again, was only forbidden for political crimes. This led several cantons (AI, OW, SZ, ZG, SG, LU, VS, SH, FR) to reintroduce capital punishment.
In the making of the Swiss Criminal Code the death sentence was subject to fierce debate but ultimately banned for all crimes.[30] Even though the Constitution up until 1999 would have allowed to pass the death sentence for all but political crimes, the federal legislator in 1937 decided not to implement it.[31] For the cantons the impending enactment of the Swiss Criminal Code meant that their provisions on the death penalty would no longer be valid (Art. 336 lit. b CC/1937). However, in the time between the Parliament’s decision (21 December 1937) and the enactment of the Swiss Criminal Code (1 January 1942) two more convicted murderers were executed: In the early morning of 18 October 1940 at the prison of Sarnen/OW Hans Vollenweider who had killed a young policeman became the last person to ascend the scaffold for a crime under civic jurisdiction. This execution was highly contested and even the widow of the policeman asked for a pardon. During and after World War II 35 persons were sentenced to death for military crimes such as high treason, 17 of them were executed.[32] The Federal Criminal Code of the Military allowed the death penalty until 1992.
Even though Protocol 13/ECHR nowadays legally prevents Switzerland from reintroducing the death penalty the controversy never has come to a complete halt. In 1985 a popular initiative[33] «to Safe our Youth» was launched to reinstate the death penalty for selling hard drugs. The committee however failed to provide the necessary 100.000 signatures.[34] In 2010 the family members of a victim started a popular initiative entitled «Death Penalty for Murder with Sexual Abuse».[35] It turned out to be a PR-stunt to raise awareness for victims and their families. Nevertheless it once more sparked a vivid controversy.[36]
6th Euthanasia / Assisted Suicide
Swiss criminal law in principle allows assisted suicide and so called «passive» euthanasia. It is however forbidden to actively bring about someone’s death even if this person asks to be killed («active euthanasia»).
The legality of assisted suicide results from Article 115 CC/CH e contrario: Any person who for selfish motives incites or assists another to commit suicide is liable to a custodial sentence up to five years or to a monetary penalty. As Carl Stooss put it already in 1894 «suicidal persons deserve pity, not punishment».[37] Thus, attempted suicide is no crime under Swiss Law. It was however controversial whether this legality should also stretch to persons aiding and abetting suicide.[38] The legislator decided that helping someone to die out of compassion and empathy should not constitute a criminal wrongdoing.[39] Criminal liability is only warranted if the incitement or assistance to suicide is driven by selfish, e.g. monetary, motives. Due to this regulation a physician who procures a lethal dose of Natrium-Pentobarbital (NaP) to a person who wishes to die, is not liable. Nor are organisations, such as Exit or Dignitas, that provide company and assistance in suicide, as long as they operate on a non-profit basis.[40] Family members who help and accompany their loved-ones in suicide are however at risk: even if they help out of empathy they – as heirs – might still be viewed to act for selfish motives.