Murder (switzerland)
In Switzerland, murder refers to a homicidal offense that is regarded as a qualification of intentional homicide .
Systematics
The Swiss Criminal Code divides deliberate homicides into three parts: The basic offense is intentional homicide according to Art. 111 Criminal Code (StGB), there is also the qualified offense of murder according to Art. 112 StGB and the privileged offense of homicide according to Art. 113 StGB. The view that the three articles describe qualification levels for the same offense and not three separate offenses is undisputed in teaching and practice.
Like the entire criminal code, this basic concept is based on drafts by the Swiss criminal lawyer Carl Stooss .
Concept of murder
The murder qualification is described as follows: "If the perpetrator acts particularly unscrupulous, if his motive, the purpose of the act or the manner of execution are particularly reprehensible, the penalty is life imprisonment or imprisonment not less than ten years." The act must therefore Exceed the degree of reprehensibility that is inherent in every homicide anyway. The law does not state any clearly defined characteristics of murder, but allows the court a margin of discretion when determining the qualification. The penalty for murder ranges from 10 years in prison to life. In practice, life imprisonment is very rarely imposed.
Simply put, there are two reasons for qualification: the particularly reprehensible motive and the particularly reprehensible type of execution. The subtle differentiation between purpose and motivation does not play a role in practice.
The qualifier of the particularly reprehensible motive
The point here is that the perpetrator shows a particularly blatant disdain for life. Simply put, this qualification is more likely to be fulfilled the more futile or selfish the purpose pursued by the act. The delimitation is difficult and is often discussed controversially in specific cases.
In practice, murder is always recognized if the act serves to make another criminal act possible (e.g. robbery) or if the perpetrator wants to evade arrest by the act (e.g. by firing his escape route).
The qualifier of the particularly reprehensible type of execution
This qualification is fulfilled if the perpetrator lets the victim suffer unnecessarily (for example by inflicting particular pain on him or by causing him to fear death over a longer period of time). It does not matter whether the execution of the crime is particularly repulsive to a third party (for example because it is particularly bloody or because the perpetrator mutilates the corpse after the killing).
The insidiousness listed in German law is not a qualification in Switzerland. Danger to the community can be a qualification reason insofar as the perpetrator shows a particularly blatant disdain for life by endangering many people.
Murder qualification and contingency
In general consensus that the murder qualification also eventualvorsätzlich can be met (such as when the perpetrator of a crime previous to secure his flight emits an untargeted shot in the direction of the tracker).
homicide
A killing which takes place “in a violent emotional movement that is excusable according to the circumstances or under great emotional stress” is considered to be privileged manslaughter . In this way, not only the momentary affect can be privileged ( "violent emotional movement" ), but also a planned act that occurs from a persistent, subjectively hopeless situation can be manslaughter ( "under great emotional stress" ). It is always necessary, however, that the emotion must be excusable ; it is not enough that it can only be explained psychologically. The penalty for manslaughter is from 1 to 10 years imprisonment.
Deliberate Killing
The basic offense of willful homicide occurs when the act is neither murder nor manslaughter, so to a certain extent falls in between. The demarcation is notoriously difficult. Relationship crimes are often qualified as intentional homicide. Deliberate homicide is punishable by a prison sentence of 5 to 20 years.
Other homicides
In addition, killing variants other than leges speciales are regulated in separate articles of the penal code in Switzerland . So euthanasia in Art. 114 , enticement and assisted suicide in Art. 115 and infanticide in Art. 116 as intent offenses and manslaughter in Art. 117 .
Induction and aiding and abetting to commit suicide are only punishable in Switzerland if they occur “for selfish reasons” (Art. 115).
Statute of limitations
In contrast to the law of Germany and Austria, murder is subject to the statute of limitations under Swiss law; the limitation period according to Art. 97 StGB is 30 years. Only genocide within the meaning of Art. 264 does not expire, as this would be contrary to international law.
In a motion submitted in 2016 to change the statute of limitations in the Criminal Code, in particular for serious crimes that result in life sentences, the Federal Council took the following position:
“Statute of limitations under criminal law is provided in most legal systems. It is based primarily on the right to forgiveness and forgetting and on the healing effect of the passage of time. The state's interest in prosecuting the law fades over time and the need for retaliation diminishes. In addition, the perpetrator's personality can change. However, there are also practical reasons for the statute of limitations: If a long time elapses between the time the offense was committed and the opening of criminal proceedings, it is much more difficult to collect evidence. There is a risk that the relevant facts cannot be clarified or cannot be clarified in a legally sufficient manner; the risk of a miscarriage of justice increases. [...] "
