Incitement (Switzerland)
The incitement is in criminal law of Switzerland participation form on the offense committed, the participants - the instigator - the (main) does not set itself performs nor control over the act regarding the fact has. In Switzerland, this form of participation is regulated in Art. 24 StGB . According to Paragraph 1, the instigator is "[w] he deliberately commits someone to [a] crime or misdemeanor [...]". The threat of punishment for the instigator is the same "[...] that applies to the perpetrator [...]".
The objective requirements
Incitement is the determination of a perpetrator to commit a main offense in the form of a crime, a misdemeanor (according to Art. 24 Paragraph 1 StGB) or , what is not explicitly mentioned by law, according to Art. 104 StGB or contrario Art. 105 Paragraph 2 StGB, to a violation. The instigator must evoke the decision to act in a certain act, whereby this decision is made through a psychological influence - with a certain intensity - and must relate to a recognizably wanted act. It follows from this that inciting “any” act is not possible. In addition to determining an act, it is also conceivable to simply advise against exerting influence (to be taken into account in the case of omission offenses) by e. G. to save an imminent threat to life. The criminal liability of incitement is purely accessory ( limited accessority ), which means that it is always dependent on a main offense that is unlawful and constitutive. The guilt of the instigator can only be affirmed if there is a main offense that is (at least) a factual and illegal.
The subjective requirements
On the subjective side, a double intent is required. First, the act committed by the direct perpetrator must have been at least accepted by the instigator (eventual dolus) and, secondly, the perpetrator's decision to act must have been evoked in the same way.
Attempted incitement in accordance with Art. 24 Paragraph 2 StGB
According to Art. 24 Para. 2 StGB, anyone who tries to instigate someone to commit a crime is punished for attempting the act. In such a case, the main act that was instigated did not exceed the experimental stage. This means that the perpetrator has started to carry out the act, but the factually defined unjust result of the act has not objectively occurred. According to the threshold theory of the Swiss Federal Supreme Court, "[...] the execution [of the act] already includes every activity which, according to the plan that the perpetrator has made, represents the last decisive step on the way to success, from which usually not more is withdrawn, unless due to external circumstances that make it difficult or impossible to pursue the intention ”(BGE 83 IV 144 f .; also cited in BGE 87 IV 155). The threat of punishment is the same for the perpetrator and the instigator.
When solving incitement cases, it should be noted that the perpetrator who is closest to the act must always be started.
Deviation of the committed act from the suggested act
If the perpetrator deviates from the instigated act, the following cases can be distinguished:
Quantitative diversity
a) The main perpetrator does indeed commit an act of the same type, but with a lower penalty than was suggested by the instigator. The instigator is liable to prosecution for having fully incited the committed act and (if it is a crime) for attempting to incite the committed offense.
b) The main perpetrator does indeed commit an act of the same type as that suggested, but goes beyond the suggestion of the instigator, for example by committing a qualified form of the act. Here the instigator is punished according to his intention for inciting the offense he instigated, but not beyond that.
Qualitative diversity
The main perpetrator commits an act different from the one suggested by the instigator. The instigator is only to be punished for attempting to incite the offense he or she has suggested (only if it is a crime).
literature
- Andreas Donatsch, Brigitte Tag: Criminal Law I, Criminal Doctrine - 9th edition; Zurich / Basel / Geneva 2013, ISBN 978-3-7255-6782-9
- Günter Stratenwerth: Swiss Criminal Law, General Part I, The Criminal Act - 4th Edition, Bern 2011, ISBN 978-3-7272-8667-4
Web links
Individual evidence
- ^ Günter Stratenwerth: Swiss Criminal Law General Part , §13, N 76
- ^ Günter Stratenwerth: Swiss Criminal Law, General Part , 3rd Edition, Bern 2005, p. 376
- ^ Günter Stratenwerth: Swiss Criminal Law, General Part , 3rd Edition, Bern 2005, p. 380ff
- ^ Karl-Ludwig Kunz: Swiss Criminal Law Allg. Part , p. 55
- ^ Extract from the judgment of the Court of Cassation of October 27, 1961 ( Memento of October 13, 2013 in the Internet Archive )
