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This first section is intended to introduce and explain the development of the Swiss Criminal Code, starting with a brief history of the codification of criminal law across Switzerland (1.). Next, the gradual development of the criminal code we have today, designed by Carl Stooss, is examined (2.). The content and form of this current criminal code will be outlined (3.), before some particularities of the code are analysed in more detail: namely, the dualism of sanctions (4.), the death penalty in Swiss law (5.), and the regulations on assisted suicide and euthanasia (6.).
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 However, this codification was not to last for long: after the decline of the Helvetic Republic in 1803, the cantons regained their right to create and apply their own criminal codes. The canton of Fribourg, for example, reintroduced the Constitutio Criminalis of Emperor Carl V of 1532 (“Carolina”);2 this Code provided on one hand for some brutal forms of punishment such as drawing and quartering, on the other hand it had once been quite modern for it also “advanced” individual rights and protected suspects from excessive legal arbitrariness (e.g. no torture without probable cause, no leading questions, compensation if tortured illegally, etc.). Of course, in the 19th century the Carolina was hopelessly outdated.
The Switzerland we know today was founded in 1848 in the aftermath of the Sonderbund war, which was a civil war between Catholic and Protestant cantons. The seven Catholic cantons who formed the Sonderbund opposed the impending centralisation of Switzerland as they feared that their interests would be marginalized by the majority of Protestant cantons. It was the Protestants that prevailed in the Sonderbund war, but it is the lasting legacy of the Swiss founding fathers – and especially of the president of the constitutional convention ULRICH OCHSENBEIN – that the interests of the defeated were also taken into account, when drafting the Constitution which followed this conflict. Hence, it was not a central Swiss Republic but the Swiss Confederation that emerged at this point.
Figure 1: Ulrich Ochsenbein, 1811–18903
One of the main features of this federal system founded in 1848 is the autonomy of the 25 cantons:4 the cantons kept their legislative independence. So even after Switzerland was founded as a modern federal state, the cantons retained their own criminal codes. Considering the size of the cantons (for example, even today the canton of Glarus has a population of only 40’000 inhabitants) this variety of criminal codes proved to be very inefficient. Therefore, the Swiss Lawyers Association held, at its general assembly of 1887, that an “efficient and successful fight against crime is not possible as long as the fragmentation of cantonal criminal codes persists.”5
Following this declaration by the Swiss Lawyers Association, the Swiss Federal Council asked CARL STOOSS, a professor of criminal law at the University of Bern, to draw up a comparative compendium of all the cantonal criminal codes. 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. 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.
Interestingly, three cantons were missing in CARL STOOSS’ compilation: Uri, Unterwalden and Appenzell Innerrhoden. The reason for this was that these small cantons had no formal criminal codes, only a few written sources of law at that time. Fribourg, as mentioned, still relied on the “Carolina”. CARL STOOSS’ compilation of the cantonal codes 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, and lottery) were not covered. The cantonal rules on the death penalty became a part of the compilation even though capital punishment was already highly controversial by this time.
In 1893, CARL STOOSS published his first draft of the Criminal Code. At that time, nobody anticipated that the legislative procedure would take a record-breaking 50 years to achieve completion. Up until 1916, three commissions of experts deliberated on various drafts of the code. In 1918, the Swiss Federal Council handed its dispatch6 to Parliament. It was another ten years before the Federal Assembly entered the debate in 1928; following this, they actually spent a further ten years deliberating the Code. Finally, on 21 December 1937, the still highly controversial Swiss Criminal Code was adopted. The opponents claimed that a unified codification for Switzerland undermined cantonal autonomy in the crucial field of criminal law. Catholic groups also opposed the Code because it legalised (medically warranted) abortions.7
The Code’s abolition of the death penalty was also still a controversial issue.8 The Code thus had to be submitted to a referendum. On 3 July 1938, a slim majority of 53.5 % of the electorate approved the new criminal code. The Code officially came into force on 1 January 1942.
3. CONTENT9
In the Swiss criminal law of today, 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). Misdemeanours are offences that carry a custodial sentence not exceeding three years or a monetary penalty (Article 10). Monetary penalties are composed of penalty units. The quantity of the units (a maximum of 180; Article 34 I) reflects the culpability of the offender, while the amount charged per unit reflects the offender’s financial situation (currently CHF 30 – 3’000, while allowing courts the possibility of lowering this minimum to CHF 10 where special financial circumstances exist; Article 34 II). Finally, contraventions are criminal acts that are punishable only with a fine (Article 103). The maximum fine is usually CHF 10’000 (Article 106).
Figure 2: Structure of the Swiss Criminal Code
The Swiss Criminal Code contains 392 Articles. It is divided up into three books.
Part I (Articles 1–110) mainly regulates the general provisions on criminal liability (omissions, intention and negligence, justifications, guilt, responsibility, attempt, and participation) and sanctions (e.g. custodial sentences, monetary penalties, suspension of sentences, parole, therapeutic measures, and indefinite incarceration). For example, there are two types of intention in Swiss criminal law: these are contained in Article 12. Article 12 encompasses both direct intent and conditional intent. Direct intent is possessed when the offender both knows that a particular consequence is possible and wants this consequence to occur.10 Conditional intent, or dolus eventualis, is possessed when the offender realises that the consequence is possible and accepts this risk – albeit not necessarily wanting the harm to occur. In this sort of case, the offender is indifferent about whether or not the harm will occur.11
The Swiss legislator’s decision to introduce a general part that sets up the common elements of crime and sentencing followed a long tradition. The Italian Renaissance jurist TIBERIO DECIANI (1509–1582) is credited with being the first to coin the idea of splitting up criminal codes into general and specific parts in his Tractatus Criminalis of 1590. Criminal codes which were created before this, such as the Carolina (1532), only contained specific, casuistic provisions. The move towards including both general and specific parts allowed criminal codes to be kept much shorter. By creating general rules for all crimes, the legislator also better fulfilled the nulla poena sine lege principle;12 having general rules removes any gaps in criminal liability that would otherwise have to be filled by analogy. Further, by predetermining liability in a general manner, the legislator hoped to minimize the influence of courts and academics on the interpretation of criminal codes.
Part II covers the specific provisions (Articles 111–332): it establishes criminal offences which protect 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). In addition, criminal offences which protect 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) were also included.
Part III (Articles 333–392) deals with the introduction and application of the Swiss Criminal Code.
Many criminal provisions exist outwith the Criminal Code: for example, road traffic offences, drug crimes, and illegal use of weapons all form part of specific federal codes.13 In practice, these laws are highly relevant, in particular road traffic offences.14
Sanctions are the consequences imposed for criminal acts. In Switzerland there are two main categories of sanctions: sentences and measures. Sentences (monetary penalties, custodial sentences, fines) are retributive in nature. They are mainly backward-looking: their aim is to reprimand and punish offenders for their wrongdoing. Measures, on the other hand, are preventive in nature. Thus, they are predominantly forward-looking: they are designed to protect society from dangerous offenders by either curing them of any mental deficiencies or addictions (therapeutic measures) or by permanently incapacitating them (indefinite incarceration).
Figure 3: Dual System of Sanctions
This dual system of sanctions was CARL STOOSS’ invention. The idea received universal acclaim, and other jurisdictions soon followed the approach.15
CARL STOOSS’ new concept was successful because it appeased one of the fiercest debates to occur in criminal law: the debate over the legitimacy of criminal punishment. Scholars fought over this idea throughout the 18th and 19th century. What gives the state the right to inflict harm upon offenders? There were three possible answers: (1) They deserve it, i.e. just desert.16 (2) It will teach them a lesson about their behaviour and thus deter future offending, i.e. special prevention.17 (3) The threat and enforcement of criminal punishment will deter wider society from offending as well, i.e. general prevention.18
Just desert theories of punishment are only about retribution for past acts. They are also called absolute theories because they assert that punishment does not have to serve any future societal goals. In contrast, special and general prevention are known as relative theories because punishment always has to relate to a future societal goal (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 punishment can and must only be concerned with retribution. Sentences are imposed because offenders need to get their just deserts for their crimes. Contrastingly, the modernists championed (special) prevention as the main goal of criminal punishment. One of their strongest advocates, FRANZ VON LISZT (1851–1919), opposed the idea of having retribution as a sole focus in his main oeuvre, ‘Purpose in Criminal Law’ (1882). There, he asserted that punishment must achieve at least one of the following goals: to heal offenders, to scare them straight, or to permanently incapacitate them.
Both schools had legitimate points: the classical school rightly pointed out that theories of prevention turned offenders from autonomous human beings into mere objects, by shaping them as people into a form that better meets societal needs (special prevention) or by making an example out of them to deter criminality in the wider public (general prevention). The offender is used as a means to an end and is not respected as an autonomous moral agent. Simultaneously, the modernists were also right to assert that punishment cannot be entirely detached from its effects: it must also serve societal ends like the reintegration of offenders. Therefore, the modernists advocated for the use of new instruments in the criminal law, like the employment of fines, parole, educational prison schemes, pedagogical rather than punitive sanctions for young offenders, and the protection of society from dangerous offenders.
CARL STOOSS’ landmark achievement was to accommodate both schools’ beliefs in his dual system of sanctions, formalised in the Criminal Code.19 Sentences should serve the purpose of retribution, while measures must serve societal ends like reintegration or maintaining safety.
The most controversial sanction is capital punishment. Today, the death penalty is prohibited (Article 10 I Constitution).20 In 2002, Switzerland ratified Protocol No 13 to the ECHR, concerning the abolition of the death penalty in all circumstances.
Throughout the Middle Ages and into modern times, the death penalty was commonly employed in Switzerland. It also holds the unfortunate record of being the last country in Europe to have executed a person for witchcraft: On 13 June 1782 ANNA GÖLDI21 was beheaded immediately after the council of Glarus had convicted her of witchery. Of course, she had only confessed under torture.
Later, both the Code pénal of 1799 and the cantonal criminal codes of the early 19th century provided for the death penalty in the case of crimes like murder, aggravated robbery, or arson. Beheading by sword or guillotine was the most common means of execution. Under the influence of enlightenment thinkers like BECCARIA and VOLTAIRE, the Federal Constitution of 1848 banned the death penalty for political crimes. In the following decades, several cantons22 entirely abolished it. Further, in 1874, Article 65 of the Federal Constitution issued a total ban. Yet, unfortunately, 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. Henceforth, the death penalty, again, was only forbidden for political crimes. This led to several cantons reintroducing capital punishment.23
In the making of the Swiss Criminal Code, the death penalty was subject to fierce debate, but the ultimate decision was to ban it in all cases, for all crimes. This decision was made in 1937 by the federal legislator, even though up until 1999,24 the Constitution would have allowed the death penalty to be used as the means of punishment for all crimes except political ones.
For the cantons, the enactment of the Swiss Criminal Code meant that their provisions on the death penalty would become invalid (Article 336 lit. b Criminal Code of 1937). However, in the time between Parliament’s decision to abolish the death penalty (21 December 1937) and the official enactment of the Swiss Criminal Code (1 January 1942), two more convicted murderers were executed. The last execution mandated under civic jurisdiction was that of Hans Vollenweider, an offender who had killed a young policeman. In the early morning of 18 October 1940, at the prison of Sarnen in Obwalden, he ascended the scaffold. This execution was highly contested: even the widow of the policeman had asked for a pardon. Furthermore, the Federal Criminal Code of the Military allowed the death penalty until 1992. During and after World War II, 35 persons were sentenced to death for military crimes such as high treason, and 17 of them were executed.
As mentioned above, Switzerland has now, as of 3 May 2002, ratified Protocol 13 of the ECHR, thereby committing to banning the death penalty in all circumstances without the possibility of derogation. There is not, however, total clarity regarding the extent to which this Protocol would prevent Switzerland from re-introducing the death penalty. Some argue that the Swiss Constitution could be modified by a popular initiative (Article 139 Constitution) in a way that explicitly and intentionally violates Protocol 13, which would allow Switzerland to reintroduce the death penalty.25
Aside from this legal issue, public debate over the use of the death penalty continues. In 1985, a popular initiative26 “to Save our Youth” was launched to reinstate the death penalty for selling hard drugs. The committee, however, failed to collect the necessary 100’000 signatures. In 2010, the family members of a murder victim started a popular initiative entitled “Death Penalty for Murder with Sexual Abuse”. It turned out to actually be a PR-stunt to raise awareness for victims of such a crime, and their families. Nevertheless, it once again sparked huge controversy.
6. EUTHANASIA / ASSISTED SUICIDE
A further particularity worth discussing is the Swiss regulation on euthanasia and assisted suicide. Regarding suicidal persons themselves, as CARL STOOSS had stated already in 1894: they “deserve pity, not punishment.” Thus, attempted suicide is not a crime under Swiss Law. It was, however, at the time of drafting the Criminal Code, a matter of some controversy whether this removal of criminal liability should also be stretched to cover persons who aid and abet suicide.
The legislator decided that helping someone to die out of compassion and empathy should not constitute criminal wrongdoing. The legality of assisted suicide results from Article 115 e contrario: any person who, for selfish motives, incites or assists another person to commit suicide is liable to a custodial sentence of up to five years or to a monetary penalty. Criminal liability is only warranted if the incitement or assistance to suicide is driven by selfish motives: for example, the possibility of financial gain. Due to this regulation, a physician who provides a person who wishes to die with a lethal dose of Natrium-Pentobarbital (NaP) is not liable. Nor are organisations such as Exit or Dignitas that provide comfort and assistance in suicide, as long as they operate on a non-profit basis. However, family members who help their loved-ones commit suicide, even by simply accompanying them to an organisation like Dignitas, are put at risk by this provision: due to their likely position as heirs to the suicidal individual, they might be viewed as having acted for selfish motives even if, in reality, they were spurred by compassion.
Passive euthanasia is also allowed by Swiss criminal law. This term refers to situations in which death ensues from a deliberate decision not to intervene or not to pursue life-saving measures, where the failure to act corresponds with the will of the person concerned. For example, when a person with a heart attack has refused CPR, or an elderly person with pneumonia refuses to be treated with antibiotics, or the parenteral nutrition of a person in coma is discontinued, where this is what the coma patient himself would have wished. Generally under Swiss law, a deliberate failure to save someone’s life can lead to criminal responsibility for homicide by omission (Articles 111 et seqq.).27 This applies only when the person failing to act is under a legal or contractual obligation to safeguard the victim’s life (Article 11). Physicians or spouses would generally have such an obligation. However, in the circumstances outlined above, criminal responsibility is not incurred. Their general obligation to act to safeguard life is outweighed by the fact that intervening against the patient’s will in such a case would in itself constitute a crime (for example, assault or coercion).
Active euthanasia is not permitted by Swiss criminal law. This term refers to situations where a person’s death is caused by a wilful act, where this act was requested by the person. An example would be the administration of a lethal injection to a person who wishes to die.28 Actively killing someone is a crime under Swiss law, even if the “victim” explicitly asks to be killed. According to Article 114 (“Homicide at the request of the victim”), any person who for commendable motives, and in particular out of compassion, causes the death of a person at that person’s own genuine and insistent request is liable to a custodial sentence of up to three years or to a monetary penalty. When this rule was drafted in the early 20th century, the legislators decided that “the principle that all life is untouchable” prevented them from legalising consensual killings. There is, however, a substantially reduced sentence; killing someone who has given their consent is only a misdemeanour.
There are two key problems with the law’s absolute prohibition on active euthanasia in Switzerland. Firstly, contrary to what the legislators of the early 20th century claimed to be the case, it is clear that life is not “untouchable” under Swiss law. This is illustrated by, for example, the law on passive euthanasia or the legality of killing in self-defence (Article 15). Secondly, it is highly controversial whether turning off a life-sustaining machine is to be viewed as an active behaviour punishable by Article 114. It has been argued that such an action simply allows the person’s health condition to kill them, rather than the removal of the machine being the cause of death.29 Further, arguably removing any life-sustaining measures is morally equivalent to never beginning them in the first place – which Swiss law permits. Today, the debate on whether the active killing of persons who are unable to kill themselves can be justified rages on.
1STEFAN TRECHSEL/MARTIN KILLIAS, Criminal Law, in Francois Dessemontet/Tugrul Ansay, (eds.), Introduction to Swiss Law, 3rd edition, The Hague 2004, pp. 245, p. 246.
2NADINE ZURKINDEN, National characteristics, fundamental principles, and history of criminal law in Switzerland, in Ulrich Sieber/Konstanze Jarvers/Emily Silverman (eds.), National Criminal Law in a Comparative Legal Context, Vol 1.1, Berlin 2013, pp. 205, p. 295.
3Source: Britannica (https://perma.cc/EC7V-CTE4).
4There were 25 cantons at this point in history. The canton which was added later is that of Jura, which acceded to the Federation in 1979, becoming the 26th Swiss canton.
5This is an own translation of a quote from Carl Stooss’ 1890 comparative compendium on cantonal criminal codes, p. IX (https://perma.cc/S2EE-LT6M).
6The term “dispatch” (German: Botschaft; French: message) is the official term used by the Swiss government for explanatory reports to draft legislation; resembling a White Paper in the UK; see Chapter Swiss Legal System, p. 28.
7ZURKINDEN, p. 296 with further references.
8ZURKINDEN, p. 296 with further references.
9In the following text, where Articles are mentioned without referencing their source of law, they are located in the Swiss Criminal Code of 21 December 1997, SR 311.0; see for an English version of the Swiss Criminal Code www.admin.ch (https://perma.cc/4QS4-CWQ5).
10ANNA PETRIG/NADINE ZURKINDEN, Swiss Criminal Law, Zurich/St. Gallen 2015, p. 69.
11PETRIG/ZURKINDEN, p. 70.
12A key principle in Swiss law, meaning “no penalty without law” (see pp. 385.).
13Federal Act on Road Traffic of 19 December 1958, SR 741.01; Federal Act on Narcotics and Psychotropic Substances of 3 October 1951 (Narcotics Act, NarcA), SR 812.121, see for an English version www.admin.ch (https://perma.cc/BU2C-495F); Federal Act on Weapons, Weapon Equipment and Ammunition of 20 June 1997, SR 514.54.
14In 2016, there were 57’518 convictions of adults for road traffic offences, which is 52 % of all 109’116 convictions of adults (source: Federal Statistical Office: https://perma.cc/QP23-E83X).
15ZURKINDEN, p. 304
16Just desert/retribution was the starting point of the absolute theories of punishment purported by IMMANUEL KANT and GEORG FRIEDRICH WILHELM HEGEL. These theories were known as “absolute” because punishment was absolved from serving any future societal goals. Such theorists strictly viewed punishment as a retributive act against the offender. Punishment was thus viewed as a necessary act of communication to demonstrate the condemnation of an autonomous agent who had chosen to break the law.
17Special prevention was advocated by CHRISTOPH CARL STÜBEL and KARL VON GROLMAN. They argued for a criminal law system that should effectively prevent the offender from reoffending.
18General prevention was championed by PAUL JOHANN ANSELM RITTER VON FEUERBACH. He opposed special prevention because tying punishment to the offender’s future likelihood of reoffending (rather than connecting punishment to the past criminal act) would leave the offender’s punishment entirely at the discretion of the judge. This could lead to perverse outcomes: for example, someone who had repeatedly committed petty theft could, under this principle, be imprisoned for life due to the statistical likelihood that they would steal again. In FEUERBACH’S opinion, however, it was permissible to try to educate and deter the general public through punishment.
19ZURKINDEN, p. 304.
20Federal Constitution of the Swiss Confederation of 18 April 1999, SR 101; see for an English version of the Constitution www.admin.ch (https://perma.cc/M8UJ-S369).
21ANNA GÖLDI was employed as a maid by JOHANN JAKOB TSCHUDI, a rich physician and politician in Glarus. She was accused of having put needles in the milk of TSCHUDI’s daughter, although later examinations of the case suggest that TSCHUDI may have been conducting an extra-marital affair with GÖLDI and that this may have been the actual cause of the accusation of witchcraft. Differing recollections of this case are unclear on whether ANNA’s last name was Göldi or GÖLDIN.
22Including Fribourg, Neuchâtel, Zurich, Ticino, Geneva, Basel Stadt, Basel Landschaft, and Solothurn.
23Appenzell Innerrhoden, Obwalden, Schwyz, Zug, St. Gallen, Lucerne, Valais, Schaffhausen, and Fribourg.
24Switzerland ratified the “Second Option Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty” on 16 June 1994. This protocol obliges state parties to take all necessary measures to abolish the death penalty within their jurisdiction, during both war and peace time. Switzerland implemented the protocol into the revision of the Swiss Federal Constitution of 20th November 1996, but the Constitution did not formally enter into force until 1 January 2000.
25This sort of argument makes use of the so called Schubert exception, which is discussed in the chapter on International Relations on pp. 179.). The case establishes that where the Federal Assembly has intentionally enacted legislation which violates the treaty obligation, the authorities shall apply the federal act. The Schubert exception does not apply in the case of treaties which guarantee fundamental rights, such as the ECHR; the rights conferred by such instruments must be respected in all cases. However, there has been no explicit decision as of yet regarding whether the Schubert exception would apply to a conflict between a treaty, even one which guarantees fundamental rights, and the Constitution.
26Then Article 121 II Constitution of 1874; today: Article 139 Constitution.
27Liability can also ensue from Article 128 (“Any person who fails to offer aid to another … who is in immediate life-threatening danger, in circumstances where the person either could reasonably have been expected to offer aid.”).
28Judgement of the Bezirksgericht Dielsdorf/ZH, 15 December 2003 (Nr. GG030076).
29As was argued in the famous British case of Airedale National Health Service Trust v Bland (1993) 1 All ER 821 by the House of Lords, concerning the removal of life-sustaining treatment from a 17 year old boy in a persistent vegetative state: e.g. see Lord Goff at 867.