Conditional penalty (Switzerland)
In Swiss criminal law, conditional punishment is understood to be the decision of a court not to enforce or only partially enforce an imposed penalty for a certain period of time (probationary period). So either all or part of the sentence is postponed. During the probationary period, the convicted person has the opportunity to justify the trust placed in him. If he does not relapse within the probationary period and does not evade probation assistance, the sentence is finally waived, d. H. not enforced.
From a legal point of view, the conditional sentence is not, as is often believed or presented in the media, a type of penalty in addition to or instead of a fine or imprisonment (“suspended sentence”, “conditional penalty”), but rather the execution of the sentence on probation exposed. The actual sentence still exists. If a court does not issue a conditional penalty, this is called an unconditional penalty.
The conditional penalty is regulated in Articles 42 to 46 of the Swiss Criminal Code.
Similar legal instruments exist in Austria in the form of conditional leniency and in Germany with parole .
Conditional postponement of the entire sentence
If someone is sentenced to imprisonment not exceeding two years, the court must postpone the sentence with a trial period of at least two and a maximum of five years if an unconditional sentence does not appear necessary to prevent the perpetrator from committing further crimes or offenses.
If the offender has already been sentenced to imprisonment of at least six months or a fine of at least 180 daily rates in the past five years, the postponement of the sentence is limited to exceptions.
A prerequisite for the conditional forbearance of a sentence is that the condition does not conflict with any special or general preventive considerations: If the court is of the opinion that the execution of the sentence is necessary to prevent either the perpetrator himself or other persons from committing (further) crimes to prevent it, it may not conditionally look up the penalty, but has to pronounce it unconditionally.
As a result, conditional punishment means that the convicted person does not (initially) have to begin the custodial sentence.
In each case of the conditional sentence, the court has to set a trial period. If the offender is again convicted of a criminal offense during this period, the convicting court must revoke the conditional sentence if this appears necessary in order to prevent the offender from carrying out further criminal acts. In this case, the perpetrator has to serve the (initially conditional and thus postponed) prison sentence. Even if the perpetrator stubbornly evades probation assistance, the serving of the sentence can be ordered. If the penalty is not revoked, it must be waived.
In addition to the conditional sentence, the court can always issue instructions or order probation assistance.
Conditional postponement of part of the sentence
A custodial sentence of at least one and a maximum of three years can be pronounced partially conditional if the court considers this to be necessary in order to take into account the culpability of the perpetrator. The partial condition is limited to half of the sentence, whereby at least six months are to be executed immediately and postponed. In the case of a one-year sentence, for example, the court can order that six months be served and the other six months postponed for a probationary period of at least two years. A similar system exists in Austria in the form of conditional forbearance , while in Germany a prison sentence can only be suspended completely on probation .
Fines and Community Service
The enforcement of a fine as well as charitable work that exists in Switzerland as an independent punishment can also be postponed in whole or in part in the manner described.
The conditional fine was introduced in 2007 and has been heavily criticized. In 2010 the Federal Council announced that it would be abolished, but ultimately it did not materialize.
Conditional release
The conditional sentence should not be confused with conditional release in accordance with Articles 86 to 89 of the Swiss Criminal Code . If a custodial sentence has been pronounced unconditionally, the prisoner is conditionally released under certain conditions after two thirds of the sentence (in exceptional cases after half the sentence). The prerequisite for a conditional release is that it cannot be assumed that the prisoner will commit further offenses or crimes and that his conduct in prison justifies conditional release. The conditional release is not primarily a reward for the prisoner, but represents the final stage of the prison system and serves to prepare him for a life after serving his sentence. A probationary period is imposed on the conditionally released. If the released person does not commit any crime or misdemeanor during this probationary period, he will be released for good.
Web links
- Canton of Zurich, Department of Justice: Conditional penalties