Competence of individual judges for custodial sentences clarified
Published: Friday, Oct 4th 2024, 12:20
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Individual judges may impose a fine in addition to the maximum custodial sentence of two years within their jurisdiction and also order expulsion from the country. This was decided by the Federal Supreme Court in a leading judgment.
In the specific case, a single judge at the Emmental-Oberaargau Regional Court sentenced a man in June 2022 to 23 months' imprisonment, a fine of 100 daily rates and a fine of CHF 700 for theft, assault, multiple threats, violations of the Narcotics Act and other offenses. The Bernese High Court confirmed the sentence in 2023.
The Federal Supreme Court dismissed an appeal by the convicted man in a ruling published on Friday. The man complained that the court of first instance had exceeded its sentencing powers as a single court. The prison sentence of 23 months combined with the fine of 100 daily rates would exceed the maximum sentence of two years for a single court. One daily rate is equivalent to one day's imprisonment.
As the Federal Supreme Court states in its considerations, the Confederation and the cantons may provide for a single court as the court of first instance for the assessment of misdemeanors. The same applies to felonies and misdemeanors - unless the public prosecutor requests a custodial sentence of more than two years, detention or inpatient therapeutic measures.
A single court is also out of the question if a custodial sentence imposed conditionally in previous proceedings is revoked and the new sentence is more than two years.
Character of the penalty is decisive
In this case, the public prosecutor's office had requested a prison sentence of 23 months, a fine of 22 days and a fine of CHF 1,000. This was less than a theoretical sentence of two years' imprisonment.
The Federal Supreme Court states that the jurisdiction of the individual court is initially based on the request of the public prosecutor. The prosecution does not necessarily have to announce its motions in the indictment, but can only do so during the main hearing. It can also go beyond the requests made in the indictment in court. If the motion exceeds the authority to pass judgment, the single court must refer the case to a collegial court.
Based on the legislative history of the law, the Federal Supreme Court came to the conclusion that compliance with the maximum limit of two years should not be based on the totality of the various sanctions. The decisive factor is the deprivation of liberty, which is at least an abstract threat even in the case of a conditional custodial sentence.
It is true that an unconditional fine or even a fine can be converted into a custodial sentence in the event of non-payment. However, this step would be preceded by other options, such as payment in installments.
No explicit reference
The Federal Supreme Court bases this interpretation, among other things, on the fact that the law explicitly stipulates that various sanctions imposed may not cumulatively exceed six months. This is not the case with the jurisdiction of the individual court, which was probably intended by the legislator in order to relieve the collegiate courts.
The Federal Supreme Court also sees no problems with a single judge ordering expulsion from the country. The latter can impose measures - but with the explicit exception of detention and inpatient therapeutic measures. (Judgement 6B_1377/2023 of 4.9.2024)
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