The perfect or ideal combination is the configuration in which a single behavior achieves the elements of several offenses. The perpetrator is then convicted for each of the offences concerned and the sentence is increased in accordance with the method provided for in Article 49 of the Criminal Code.
The rule is that such a perfect concurrence is only possible if each of the offences under consideration protects a distinct legal asset.
In a decision of the Federal Supreme Court 6B_378/2020, which was published online last week, the Federal Supreme Court resolves the question of whether a breach of the ban in Art. 291 StGB and theperimeter ban of Art. 119 LEIs can enter a perfect competition.
Breach of ban is an offence under theart. 291 of the Penal Codewhich reads as follows: ” Anyone who contravenes a decision by a competent authority to expel them from the territory of the Confederation or a canton shall be punished by a custodial sentence of up to three years or a pecuniary penalty “.
The perimeter ban, whose technical name is ” Non-compliance with an assignment to a place of residence or a ban on entering a specific area ” is also an offence, but provided for inArticle 119 para. 1 of the Law on Foreigners and Integration (LEI). It provides that: ” Anyone who violates an assignment to a place of residence or a ban on entering a specific area (art. 74) shall be punished by a custodial sentence of up to three years or a monetary penalty.
This last offence expressly refers to art. 74 al. 1 LEI, which provides for several hypotheses, but notably that: ” The competent cantonal authority may order a foreigner not to leave the territory assigned to him or her or not to enter a specific area in the following cases:
a. the foreigner does not have a short-term permit, a residence permit or a settlement permit and disturbs or threatens public security and order; this measure is aimed at combating illegal drug trafficking;
In this case, the appellant, a foreign heroin addict, had been notified in 2015 of a ban on entry into Switzerland valid until April 15, 2020. Then, in 2018, he had been notified of a ban in the downtown area of the City of Geneva valid from March 22, 2018 to March 22, 2019. A map of the area covered by the ban, with the precision “access to room C. authorized” was attached to the ban, C. being an injection room available to drug addicts.
On the other hand, by judgment of May 2018, a Police Court pronounced the criminal expulsion of the appellant from Swiss territory for a period of 5 years.
A few months later, in December 2018, the appellant was stopped in the city of Geneva near the injection room C.
As a result, in August 2019, the Police Court of the Republic and Canton of Geneva found the appellant guilty of breach of ban under Art. 291 para. 1 of the Swiss Criminal Code and the violation of Article 119 para. 1 of the Federal Act on the Prevention of Crime. The court sentenced him to six months’ imprisonment, minus the time spent in pre-trial detention.
After an unsuccessful but necessary appeal to the cantonal appeal authority, the appellant appealed to the Federal Court, complaining mainly that the cantonal court had violated federal law by combining the offence of breach of ban (art. 291 CP) with the offence of non-compliance with a geographical ban imposed under the law on foreigners (art. 119 LEI). He argues that the breach of ban absorbs the offence under Art. 119 LEI to the extent that the protected legal assets merge. He therefore concludes that he was acquitted of the offence under Art. 119 LEI.
The Federal Court therefore considered the question of the concurrence between these two offences and, after examining in detail the legal assets protected by each of these offences, found that there was an ideal concurrence.
For art. 291 CP: ” Breach of ban constitutes an offence against the public authority (Title 15 of the Swiss Penal Code; see judgment 6B_1398/2020, supra, para. 1.6, intended for publication and references). It aims to guarantee the execution of expulsion decisions taken by judicial or administrative authorities “
For art. 119 al. 1 LEI the situation is more complex since this provision refers to art. 74 LEI, which provides for three different hypotheses in letters a, b and c of art. 74 al. 1 LEI. Thus: ” A distinction must be made between the violation of a perimeter ban imposed in connection with the implementation of the removal (Art. 119 cum Art. 74 para. 1 letters b and c LEI) and the violation of a perimeter ban imposed because the person concerned has behaved in a way that disturbs or threatens public security and order (Art. 119 cum Art. 74 para. 1 letter a LEI). Indeed, the violation of a perimeter ban (art. 119 para. 1 LEI) pronounced under art. 74 al. 1 let. a LEI is intended to keep the individual away from a specific area, particularly a drug trafficking location. On the other hand, if a perimeter ban is imposed in connection with the implementation of the removal or expulsion (cf. Art. 74 para. 1 let. b LEI), its non-observance is tantamount to the transgression of an expulsion decision in the sense of Art. 291 StGB (judgment 6B_1398/2020 cited above, recital 1.7, for publication and references; cf. BGE 143 IV 264, recital 2.6.2, p. 269) “.
As a result: ” the offence of violating a perimeter ban based on Art. 74 al. 1 let. he LEI aims to protect public safety and order, in particular with regard to narcotics, while art. 291 CP is intended to guarantee the execution of deportation decisions made by judicial or administrative authorities. These two provisions therefore do not protect the same legal asset (…) In the end, it should be noted that the break of ban of the art. 291 CP is in perfect harmony with art. 119 LEI where the perimeter prohibition is based on s. 74 al. 1 let. a LEI “.
The appellant could therefore be convicted of each of these offences and his sentence increased.
His appeal was rejected, but it allowed the Federal Court to clarify a question that it had never decided until then.
His conclusions were not doomed to failure and helped advance the jurisprudence. Thanks to the defense!