Sanctions in Swiss criminal law
Swiss criminal law distinguishes between penalties and measures
Penalties are intended to punish the offender. Although they aim to resocialize the offender, they focus primarily on the offender’s past behaviour, i.e. the offence committed. Swiss criminal law has a numerus clausus of sentences. Thus, in accordance with the principle of legality (1 CP), only the penalties provided for by the law may be pronounced. Since January 1, 2018 and the amendment of the law of penalties, there are only three types of penalties in Switzerland, namely:
- the sentence of deprivation of liberty
- the monetary penalty or day-fine
- l’ fine
With the exception of fines, these sentences may be suspended when the conditions for the suspension are met: no previous serious offence during the five years preceding the new offence, no unfavourable prognosis regarding the perpetrator’s future behaviour and the length of the sentence imposed is compatible with the suspension.
The reprieve implies that the sentence pronounced will not be executed by the convicted person as long as he does not commit new offences during a determined period of time (probationary period), which starts after the judgment of the enforceable sentence. There are two forms of deferment: full deferment and partial deferment.
The full reprieve (the entire sentence is suspended) is possible as long as the sentence imposed does not exceed 24 months.
The partial deferral (only part of the sentence is suspended and the other part is executed) is possible as long as the overall sentence imposed does not exceed 36 months. Beyond 36 months of deprivation of liberty, a suspended sentence is no longer possible. Thus, in a large number of cases, the challenge for the accused will be mainly to obtain a sentence whose duration will still be compatible with a suspended sentence.
The Measures are primarily intended to protect society from the commission of future crimes and potentially dangerous behavior. They are thus oriented towards the future and the protection of society, and focus little on the past behavior of the offender. For this reason it is possible to pronounce a measure against the perpetrator of an offence, even though he is criminally irresponsible and cannot be sentenced to a penalty. But measures can also be pronounced in conjunction with a sentence when, in addition to the sentence that punishes the perpetrator’s past behavior, the aim is to protect society from his future behavior by pronouncing a measure. As with penalties, the principle of legality requires that only measures provided for by law may be pronounced. Two categories of measures exist: therapeutic measures and internment on the one hand, and other measures on the other.
Therapeutic measures and internment consist of the following measures
- institutional therapeutic measures – treatment of mental disorders, addictions and measures for young adults
- outpatient treatment
- life imprisonment
With regard to the other measures these are the following measures:
- the preventive bond
- theprohibition to carry out an activity
- thecontact ban and thegeographical ban
- driving prohibition
- the publication of the judgment
- the different forms of confiscation (dangerous objects, assets), the compensatory claim and theallowance to the injured party
The pecuniary punishment (PPec), also known as days-fine, is a sanction that hits the convicted person exclusively in his patrimony.
Many crimes and offences in the Swiss penal code provide for a pecuniary penalty as an alternative to the custodial sentence.
The monetary penalty is set in two stages.
- First, the judge will determine the number of days of the fine based on the guilt of the accused. The maximum number of days is limited to 180 days, which implies that when the culpability of the perpetrator exceeds 180 days a pecuniary punishment can no longer be pronounced and only the deprivation of liberty will be possible.
- Then, once the number of days is fixed, the judge will assign a value to each day, taking into account the personal and economic situation of the author at the time of the judgment. The minimum value of each day’s fine is CHF 30, exceptionally CHF 10, and the maximum value of each day’s fine can be up to CHF 3’000.
In the event of non-payment of the fine, it may be converted into an alternative custodial sentence, with one day’s fine being equivalent to one day’s custodial sentence.
The financial penalty can be pronounced with a full suspended sentence.
The custodial sentence (PPL) is the sentence by which the convict is deprived of his liberty. In common parlance, it corresponds to imprisonment or a prison sentence and therefore affects the convicted person’s freedom.
But one of its goals is also to improve the inmate’s social behavior, in particular to teach him how to live without committing crimes.
Most of the offences in the Swiss Penal Code and all crimes are punishable by deprivation of liberty.
In Swiss criminal law, the minimum sentence of deprivation of liberty is set at 3 days and its maximum limited to 20 years. For certain particularly serious offences, such as murder, the sentence of deprivation of liberty may be pronounced for life. Other offences provide for specific minima and maxima in terms of deprivation of liberty. Thus, in Switzerland, rape will be punishable by a minimum of 1 year and a maximum of 10 years except in aggravating circumstances.
Custodial sentences are served in closed or open facilities. In some cases, they can be executed “at home” with the installation of an electronic bracelet or under the regime of semi-detention, which allows the convicted person to go to work during the day and to return to the penitentiary at the end of the day.
The custodial sentence can be imposed with a full suspended sentence of up to 24 months and a partial suspended sentence of up to 36 months.
The prisoner sentenced to a custodial sentence will also have the possibility of being conditionally released (parole) once he has served 2/3 of his sentence, or even half in exceptional circumstances, or 15 years in the case of a life sentence .
The fine is the penalty that applies exclusively to contraventions. However, it can also be imposed as an immediate fine for crimes or offenses for which a suspended sentence has been handed down.
The fine affects the convicted person’s assets.
The law does not set a minimum, but limits its maximum to CHF 10’000.00 unless otherwise provided by law. Thus, it is not uncommon, especially in the financial or customs fields, to be confronted with fines exceeding CHF 10’000.
When the judge sentences the accused to a fine, he must simultaneously set a alternative custodial sentence in case the convicted person does not pay the fine.
The fine can never be suspended .
Expulsion from Switzerland is one of the measures that the judge can pronounce against the foreign perpetrator of an offence. Considering the extreme consequences that it entails for the person it strikes, it has become one of the major issues of the new criminal law of sanctions. Swiss law distinguishes between compulsory and voluntary expulsion.
In the case of compulsory deportation, the judge is obliged to order deportation when the offender is a foreigner – regardless of his or her residence status – and is convicted of one of the offences listed exhaustively in the catalog of Article 66a of the Criminal Code.
Expulsion is thus pronounced when the perpetrator has, for example, committed murder, grievous bodily harm, rape, a serious offence under the Narcotics Law, but also burglary (theft with housebreaking) or social welfare fraud.
Mandatory deportation is imposed for a period of between 5 years and 15 years. In case of recidivism the expulsion is pronounced for a period of 20 years and can also be pronounced for life if the offender has recidivated while still under a previous expulsion.
The compulsory expulsion thus leaves practically no room for manoeuvre to the judge who, when one of the offences in the catalog is committed, must pronounce the expulsion. In exceptional cases, however, for example when the offender was born or raised in Switzerland, the judge may waive expulsion if this would put the convicted person in a serious personal situation and if the public interest in expulsion does not outweigh the private interest of the foreigner to remain in Switzerland.
On the other hand, the optional expulsion depends entirely on the judge’s discretion. It allows him – but does not oblige him – to expel from Swiss territory a foreigner who has committed any other crime or offence than those listed in the catalog of article 66a CP.
The optional expulsion is pronounced for a period between 3 years and 15 years. In case of recidivism in one of the offences listed in article 66a, the expulsion is pronounced for a period of 20 years and can also be pronounced for life if the perpetrator of the offence recidivates while still under a previous expulsion.