Swiss Criminal Code

A pen­alty or meas­ure may only be im­posed for an act that has been ex­pressly de­clared to be an of­fence by law.

¹ This Code ap­plies to any per­son who com­mits a felony or mis­de­mean­our fol­low­ing the date on which it comes in­to force.

² Any per­son who com­mits a felony or mis­de­mean­our pri­or to this Code com­ing in­to force is only sub­ject to its terms in the event that the pen­alty here­un­der is less than the pen­alty that would oth­er­wise ap­ply.

¹ Any per­son who com­mits a felony or mis­de­mean­our in Switzer­land is sub­ject to this Code.

² If the per­son con­cerned has served a sen­tence in full or in part for the of­fence in an­oth­er coun­try, the Swiss court must take the sen­tence served in­to ac­count in de­term­in­ing the sen­tence to be im­posed.

³ If the per­son con­cerned has been pro­sec­uted in a for­eign coun­try at the re­quest of the Swiss au­thor­it­ies, then un­less the of­fence in­volves a gross vi­ol­a­tion of the prin­ciples of the Fed­er­al Con­sti­tu­tion or the Con­ven­tion from 4 Novem­ber 1950⁵ for the pro­tec­tion of Hu­man Rights and Fun­da­ment­al Freedoms (ECHR), he is not pro­sec­uted in Switzer­land for the same of­fence if:

a.

the for­eign court has ac­quit­ted him and the judg­ment has taken full leg­al ef­fect;

b.

the pen­alty to which he had been sen­tenced in the for­eign coun­try has been served, re­mit­ted or be­come time-barred.

⁴ If the per­son pro­sec­uted abroad at the re­quest of the Swiss au­thor­it­ies has not served the sen­tence or has only served it in part, the whole sen­tence or the re­mainder shall be served in Switzer­land. The court de­cides wheth­er a meas­ure that has not been ex­ecuted abroad or has only been served in part must be ex­ecuted or con­tin­ued in Switzer­land.

¹ This Code also ap­plies to any per­son who com­mits a felony or mis­de­mean­our in a for­eign coun­try against the Swiss state or its na­tion­al se­cur­ity (Art. 265–278).

² If the per­son con­cerned has been con­victed of the of­fence and has served the sen­tence in full or in part in an­oth­er coun­try, the court shall take the sen­tence served in­to ac­count in de­term­in­ing the sen­tence to be im­posed.

¹ This Code also ap­plies to any per­son who is in Switzer­land, is not be­ing ex­tra­dited and has com­mit­ted any of the fol­low­ing of­fences abroad:

a.⁷

traf­fick­ing in hu­man be­ings (Art. 182), in­de­cent as­sault (Art. 189 paras 2 and 3), rape (Art. 190 paras 2 and 3), ab­use of per­sons in­cap­able of prop­er judg­ment or res­ist­ance (Art. 191) or en­cour­aging pros­ti­tu­tion (Art. 195) if the vic­tim was less than 18 years of age;

a^bis.⁸

sexu­al acts with de­pend­ent per­sons (Art. 188) and sexu­al acts with minors against pay­ment (Art. 196);

b.

sexu­al acts with chil­dren (Art. 187) if the vic­tim was less than 14 years of age;

c.⁹

ag­grav­ated por­no­graphy (Art. 197 para. 3 and 4) if the items or re­cord­ings de­pict sexu­al acts with minors.

² Un­less the of­fence in­volves a gross vi­ol­a­tion of the prin­ciples of the Fed­er­al Con­sti­tu­tion and the ECHR¹⁰, the per­son con­cerned is not li­able to fur­ther pro­sec­u­tion in Switzer­land for the of­fence if:

a.

he has been ac­quit­ted of the of­fence abroad in a leg­ally bind­ing judg­ment;

b.

the sen­tence that was im­posed abroad has been served, re­mit­ted, or be­come time-barred.

³ If the per­son con­cerned has been con­victed of the of­fence abroad and if the sen­tence im­posed abroad has been partly served, the court shall take the part served in­to ac­count in the sen­tence to be im­posed. The court de­cides wheth­er a meas­ure ordered abroad but only partly ex­ecuted there must be con­tin­ued or taken in­to ac­count in the sen­tence im­posed in Switzer­land.

¹ Any per­son who com­mits a felony or mis­de­mean­our abroad that Switzer­land is ob­liged to pro­sec­ute in terms of an in­ter­na­tion­al con­ven­tion is sub­ject to this Code provided:

a.

the act is also li­able to pro­sec­u­tion at the place of com­mis­sion or no crim­in­al law jur­is­dic­tion ap­plies at the place of com­mis­sion; and

b.

the per­son con­cerned re­mains in Switzer­land and is not ex­tra­dited to the for­eign coun­try.

² The court de­term­ines the sen­tence so that over­all the per­son con­cerned is not treated more severely than would have been the case un­der the law at the place of com­mis­sion.

³ Un­less the of­fence in­volves a gross vi­ol­a­tion of the prin­ciples of the Fed­er­al Con­sti­tu­tion and of the ECHR¹¹, the per­son con­cerned is not li­able to fur­ther pro­sec­u­tion in Switzer­land if:

a.

he has been ac­quit­ted of the of­fence abroad in a leg­ally bind­ing judg­ment;

b.

the sen­tence that was im­posed abroad has been served, re­mit­ted, or be­come time-barred.

⁴ If the per­son con­cerned has been con­victed of the of­fence abroad and if the sen­tence im­posed abroad has been partly served, the court shall take the part served in­to ac­count in the sen­tence to be im­posed. The court de­cides wheth­er a meas­ure ordered abroad but only partly ex­ecuted there must be con­tin­ued or taken in­to ac­count in the sen­tence im­posed in Switzer­land.

¹ Any per­son who com­mits a felony or mis­de­mean­our abroad where the re­quire­ments of Art­icles 4, 5 or 6 are not ful­filled is sub­ject to this Code if:

a.

the of­fence is also li­able to pro­sec­u­tion at the place of com­mis­sion or the place of com­mis­sion is not sub­ject to crim­in­al law jur­is­dic­tion;

b.

the per­son con­cerned is in Switzer­land or is ex­tra­dited to Switzer­land due to the of­fence; and

c.

un­der Swiss law ex­tra­di­tion is per­mit­ted for the of­fence, but the per­son con­cerned is not be­ing ex­tra­dited.

² If the per­son con­cerned is not Swiss and if the felony or mis­de­mean­our was not com­mit­ted against a Swiss per­son, para­graph 1 is ap­plic­able only if:

a.

the re­quest for ex­tra­di­tion was re­fused for a reas­on un­re­lated to the nature of the of­fence; or

b.

the of­fend­er has com­mit­ted a par­tic­u­larly ser­i­ous felony that is pro­scribed by the in­ter­na­tion­al com­munity.

³ The court shall de­term­ine the sen­tence so that over­all the per­son con­cerned is not treated more severely than would have been the case un­der the law at the place of com­mis­sion.

⁴ Un­less the of­fence in­volves a gross vi­ol­a­tion of the prin­ciples of the Fed­er­al Con­sti­tu­tion and the ECHR¹², the per­son con­cerned is not li­able to fur­ther pro­sec­u­tion in Switzer­land for the of­fence if:

a.

he has been ac­quit­ted of the of­fence abroad in a leg­ally bind­ing judg­ment;

b.

the sen­tence that was im­posed abroad has been served, re­mit­ted, or be­come time-barred.

⁵ If the per­son con­cerned has been con­victed of the of­fence abroad and if the sen­tence im­posed abroad has been partly served, the court shall take the part served in­to ac­count in the sen­tence to be im­posed. The court de­cides wheth­er a meas­ure ordered abroad but only partly ex­ecuted there must be con­tin­ued or taken in­to ac­count in the sen­tence im­posed in Switzer­land.

¹ A felony or mis­de­mean­our is con­sidered to be com­mit­ted at the place where the per­son con­cerned com­mits it or un­law­fully omits to act, and at the place where the of­fence has taken ef­fect

² An at­temp­ted of­fence is con­sidered to be com­mit­ted at the place where the per­son con­cerned at­temp­ted it and at the place where he in­ten­ded the of­fence to take ef­fect.

¹ This Code does not ap­ply to per­sons whose of­fences are sub­ject to mil­it­ary crim­in­al law.

² For per­sons who have not at­tained the age of 18 at the time of the of­fence, the pro­vi­sions of the Ju­ven­ile Crim­in­al Law Act of 20 June 2003¹³ (JCLA) are re­served. Where an of­fence com­mit­ted be­fore and after at­tain­ing the age of 18 must be judged, Art­icle 3 para­graph 2 JCLA ap­plies.¹⁴

¹ In this Code, felon­ies are dis­tin­guished from mis­de­mean­ours ac­cord­ing to the sever­ity of the pen­al­ties that the of­fence car­ries.

² Felon­ies are of­fences that carry a cus­todi­al sen­tence of more than three years.

³ Mis­de­mean­ours are of­fences that carry a cus­todi­al sen­tence not ex­ceed­ing three years or a mon­et­ary pen­alty.

¹ A felony or mis­de­mean­our may also be com­mit­ted by a fail­ure to com­ply with a duty to act.

² A per­son fails to com­ply with a duty to act if he does not pre­vent a leg­al in­terest pro­tec­ted un­der crim­in­al law from be­ing ex­posed to danger or from be­ing harmed even though, due to his leg­al po­s­i­tion, he has a duty to do so, in par­tic­u­lar on the basis of:

a.

the law;

b.

a con­tract;

c.

a risk-bear­ing com­munity entered in­to vol­un­tar­ily; or

d.

the cre­ation of a risk.

³ Any per­son who fails to com­ply with a duty to act shall be li­able to pro­sec­u­tion only if, on the basis of the ele­ments of the of­fence con­cerned, his con­duct is, in the cir­cum­stances, as culp­able as it would have been had he act­ively com­mit­ted the of­fence.

⁴ The court may re­duce the sen­tence.

¹ Un­less the law ex­pressly provides oth­er­wise, a per­son is only li­able to pro­sec­u­tion for a felony or mis­de­mean­our if he com­mits it wil­fully.

² A per­son com­mits a felony or mis­de­mean­our wil­fully if he car­ries out the act in the know­ledge of what he is do­ing and in ac­cord­ance with his will. A per­son acts wil­fully as soon as he re­gards the real­isa­tion of the act as be­ing pos­sible and ac­cepts this.

³ A per­son com­mits a felony or mis­de­mean­our through neg­li­gence if he fails to con­sider or dis­reg­ards the con­sequences of his con­duct due to a culp­able lack of care. A lack of care is culp­able if the per­son fails to ex­er­cise the care that is in­cum­bent on him in the cir­cum­stances and com­men­sur­ate with his per­son­al cap­ab­il­it­ies.

¹ If the per­son con­cerned acts un­der an er­ro­neous be­lief as to the cir­cum­stances, the court shall judge the act ac­cord­ing to the cir­cum­stances as the of­fend­er be­lieved them to be.

² If the per­son con­cerned could have avoided the er­ror had he ex­er­cised due care, he shall be li­able to pro­sec­u­tion for his neg­li­gent act provided the neg­li­gent com­mis­sion of the act is an of­fence.

Any per­son who acts as re­quired or per­mit­ted by the law, acts law­fully even if the act car­ries a pen­alty un­der this Code or an­oth­er Act.

If any per­son is un­law­fully at­tacked or threatened with im­min­ent at­tack, the per­son at­tacked and any oth­er per­son are en­titled to ward off the at­tack by means that are reas­on­able in the cir­cum­stances.

¹ If a per­son in de­fend­ing him­self ex­ceeds the lim­its of self-de­fence as defined in Art­icle 15 and in do­ing so com­mits an of­fence, the court shall re­duce the sen­tence.

² If a per­son in de­fend­ing him­self ex­ceeds the lim­its of self-de­fence as a res­ult of ex­cus­able ex­cite­ment or pan­ic in re­ac­tion to the at­tack, he does not com­mit an of­fence.

Any per­son who car­ries out an act that car­ries a crim­in­al pen­alty in or­der to save a leg­al in­terest of his own or of an­oth­er from im­me­di­ate and not oth­er­wise avert­able danger, acts law­fully if by do­ing so he safe­guards in­terests of high­er value.

¹ Any per­son who car­ries out an act that car­ries a crim­in­al pen­alty in or­der to save him­self or an­oth­er from im­me­di­ate and not oth­er­wise avert­able danger to life or limb, free­dom, hon­our, prop­erty or oth­er in­terests of high value shall re­ceive a re­duced pen­alty if he could reas­on­ably have been ex­pec­ted to aban­don the en­dangered in­terest.

² If the per­son con­cerned could not have been reas­on­ably ex­pec­ted to aban­don the en­dangered in­terest, he does not com­mit an of­fence.

¹ If the per­son con­cerned was un­able at the time of the act to ap­pre­ci­ate that his act was wrong or to act in ac­cord­ance with this ap­pre­ci­ation of the act, he is not li­able to a pen­alty.

² If the per­son con­cerned was only par­tially able at the time of the act to ap­pre­ci­ate that his act was wrong or to act in ac­cord­ance with this ap­pre­ci­ation of the act, the court shall re­duce the sen­tence.

³ Meas­ures in ac­cord­ance with Art­icles 59–61, 63, 64, 67, 67b and 67e may, however, be taken.¹⁵

⁴ If it was pos­sible for the per­son con­cerned to avoid his state of men­tal in­ca­pa­city or di­min­ished re­spons­ib­il­ity and had he done so to fore­see the act that may be com­mit­ted in that state, para­graphs 1–3 do not ap­ply.

If there are ser­i­ous grounds for be­liev­ing that the ac­cused may not be leg­ally re­spons­ible due to a men­tal dis­order, the in­vest­ig­at­ing au­thor­ity or the court shall or­der a spe­cial­ist re­port from an ex­pert.

Any per­son who is not and can­not be aware that, by car­ry­ing out an act, he is act­ing un­law­fully, does not com­mit an of­fence. If the er­ror was avoid­able, the court shall re­duce the sen­tence.

¹ If, hav­ing em­barked on com­mit­ting a felony or mis­de­mean­our, the of­fend­er does not com­plete the crim­in­al act or if the res­ult re­quired to com­plete the act is not or can­not be achieved, the court may re­duce the pen­alty.

² If the of­fend­er fails to re­cog­nise through a ser­i­ous lack of judge­ment that the act can­not un­der any cir­cum­stances be com­pleted due to the nature of the ob­ject­ive or the means used to achieve it, no pen­alty is im­posed.

¹ If the per­son con­cerned of his own ac­cord does not com­plete the crim­in­al act or if he as­sists in pre­vent­ing the com­ple­tion of the act, the court may re­duce the sen­tence or waive any pen­alty.

² If two or more per­sons carry out or par­ti­cip­ate in a crim­in­al act, the court may re­duce the sen­tence or waive any pen­alty in re­spect of any per­son con­cerned who, of his own ac­cord, as­sists in pre­vent­ing the com­ple­tion of the act.

³ The court may also re­duce the sen­tence or waive any pen­alty in re­spect of a per­son who with­draws from car­ry­ing out or par­ti­cip­at­ing in a crim­in­al act if the with­draw­al of the per­son con­cerned would have pre­ven­ted the com­ple­tion of the act had it not re­mained un­com­pleted for oth­er reas­ons.

⁴ If one or more of the per­sons car­ry­ing out or par­ti­cip­at­ing in a crim­in­al act makes a ser­i­ous ef­fort to pre­vent the com­ple­tion of the act, the court may re­duce the sen­tence or waive any pen­alty if an of­fence is com­mit­ted ir­re­spect­ive of the ef­forts of that per­son or per­sons.

¹ Any per­son who has wil­fully in­cited an­oth­er to com­mit a felony or a mis­de­mean­our, provided the of­fence is com­mit­ted, in­curs the same pen­alty as ap­plies to the per­son who has com­mit­ted the of­fence.

² Any per­son who at­tempts to in­cite someone to com­mit a felony in­curs the pen­alty ap­plic­able to an at­tempt to com­mit that felony.

Any per­son who wil­fully as­sists an­oth­er to com­mit a felony or a mis­de­mean­our shall be li­able to a re­duced pen­alty.

If crim­in­al li­ab­il­ity is es­tab­lished or in­creased by a spe­cial ob­lig­a­tion on the part of the of­fend­er, a par­ti­cipant shall be li­able to a re­duced pen­alty.

Spe­cial per­son­al con­di­tions, char­ac­ter­ist­ics and cir­cum­stances that in­crease, re­duce or ex­clude crim­in­al li­ab­il­ity are taken in­to ac­count in the case of­fend­ers or par­ti­cipants to which they ap­ply.

¹ If an of­fence is com­mit­ted and com­pleted through pub­lic­a­tion in a me­di­um, then, sub­ject to the fol­low­ing pro­vi­sions, only the au­thor shall be li­able to pro­sec­u­tion.

² If the au­thor can­not be iden­ti­fied or if he can­not be brought to court in Switzer­land, then the ed­it­or re­spons­ible in ac­cord­ance with Art­icle 322^bis shall be li­able to pro­sec­u­tion. If there is no re­spons­ible ed­it­or, then the per­son re­spons­ible for pub­lic­a­tion in ac­cord­ance with Art­icle 322^bis shall be li­able for pro­sec­u­tion.

³ If the pub­lic­a­tion has taken place without the know­ledge or against the will of the au­thor, then the ed­it­or or, in his ab­sence, the per­son re­spons­ible for pub­lic­a­tion shall be li­able to pro­sec­u­tion as the of­fend­er.

⁴ The ac­cur­ate re­port­ing of pub­lic talks and of­fi­cial com­mu­nic­a­tions from a pub­lic au­thor­ity may not be made sub­ject to pro­sec­u­tion.

¹ If per­sons who are pro­fes­sion­ally in­volved in the pub­lic­a­tion of in­form­a­tion in the ed­it­or­i­al sec­tion of a peri­od­ic­al me­di­um or their aux­il­i­ary per­son­nel re­fuse to give evid­ence as to the iden­tity of the au­thor or as to the con­tent and sources of their in­form­a­tion, they are not li­able to any pen­alty nor to any pro­ced­ur­al law en­force­ment meas­ures.

² Para­graph 1 does not ap­ply if the court¹⁶ holds that:

a.

the evid­ence is re­quired in or­der to save a per­son from im­me­di­ate danger to life or limb; or

b.¹⁷

without the evid­ence, a case of hom­icide un­der Art­icles 111–113 or a dif­fer­ent felony that car­ries a min­im­um cus­todi­al sen­tence of three years, or an of­fence un­der Art­icles 187, 189–191, 197 para­graph 4, 260^ter,260^quin­quies, 260^sex­ies,305^bis, 305^ter or 322^ter–322^sep­tiesof this Code or un­der Art­icle 19 para­graph 2 of the Nar­cot­ics Act of 3 Oc­to­ber 1951¹⁸ will not be solved or the per­sons sus­pec­ted of com­mit­ting the said of­fence may not be ap­pre­hen­ded.

A spe­cial ob­lig­a­tion, the vi­ol­a­tion of which es­tab­lishes or in­creases crim­in­al li­ab­il­ity, and which is in­cum­bent only on the leg­al en­tity, the com­pany or the sole pro­pri­et­or­ship¹⁹, is at­trib­uted to a nat­ur­al per­son, if that per­son acts:

a.

as a gov­ern­ing of­ficer or as a mem­ber of a gov­ern­ing of­ficer of a leg­al en­tity;

b.

as a part­ner;

c.

as an em­ploy­ee with in­de­pend­ent de­cision-mak­ing au­thor­ity in his field of activ­ity with­in a leg­al en­tity, a com­pany or a sole pro­pri­et­or­ship²⁰; or

d.

without be­ing a gov­ern­ing of­ficer, mem­ber of a gov­ern­ing of­ficer, part­ner or em­ploy­ee, as the de facto man­ager.

¹ If an act shall be li­able to pro­sec­u­tion only if a com­plaint is filed, any per­son who suf­fers harm due to the act may re­quest that the per­son re­spons­ible be pro­sec­uted.

² If the per­son suf­fer­ing harm does not have the leg­al ca­pa­city to act, his leg­al rep­res­ent­at­ive is en­titled to file a com­plaint. If he is un­der guard­i­an­ship or sub­ject to a gen­er­al deputy­ship, the adult pro­tec­tion au­thor­ity is also en­titled to file a com­plaint.²¹

³ If the per­son suf­fer­ing harm is a minor or if he is sub­ject to a gen­er­al deputy­ship, he is en­titled to file a com­plaint if he is cap­able of judge­ment.²²

⁴ If the per­son suf­fer­ing harm dies without fil­ing the crim­in­al com­plaint or without ex­pressly waiv­ing his right to file the crim­in­al com­plaint, his next of kin are en­titled to file the com­plaint.

⁵ If an en­titled per­son ex­pressly waives his right to file a com­plaint, his waiver is fi­nal.

The right to file a com­plaint ex­pires after three months. The peri­od be­gins on the day that the per­son en­titled to file a com­plaint dis­cov­ers the iden­tity of sus­pect.

If an en­titled per­son files a com­plaint against one per­son who par­ti­cip­ated in the act, all the par­ti­cipants be­come li­able to pro­sec­u­tion.

¹ The per­son en­titled to file a com­plaint may with­draw the com­plaint at any time be­fore no­tice is giv­en of the judg­ment of the second can­ton­al in­stance.

² Any per­son who has with­drawn his com­plaint may not file it again.

³ If the en­titled per­son with­draws his com­plaint against one sus­pect, the with­draw­al ap­plies to all sus­pects.

⁴ If a sus­pect ob­jects to the with­draw­al of the com­plaint against him, the with­draw­al does not ap­ply to him.

¹ Un­less the law provides oth­er­wise, a mon­et­ary pen­alty amounts to a min­im­um of three and a max­im­um of 180 daily pen­alty units.²⁴ The court de­cides on the num­ber ac­cord­ing to the culp­ab­il­ity of the of­fend­er.

² A daily pen­alty unit nor­mally amounts to a min­im­um of 30 francs and a max­im­um of 3000 francs.²⁵ The court may re­duce the value of the daily pen­alty unit to 10 francs if the of­fend­er’s per­son­al or fin­an­cial cir­cum­stances so re­quire.²⁶ It may de­cide on a value in ex­cess of the max­im­um value of the daily pen­alty unit if the law so per­mits. It de­cides on the value of the daily pen­alty unit ac­cord­ing to the per­son­al and fin­an­cial cir­cum­stances of the of­fend­er at the time of con­vic­tion, and in par­tic­u­lar ac­cord­ing to his in­come and cap­it­al, liv­ing ex­penses, any main­ten­ance or sup­port ob­lig­a­tions and the min­im­um sub­sist­ence level.²⁷

³ The au­thor­it­ies of the Con­fed­er­a­tion, the can­tons and the com­munes shall provide the in­form­a­tion re­quired to de­term­ine the daily pen­alty unit.

⁴ The num­ber and value of the daily pen­alty units must be stated in the judg­ment.

¹ The ex­ec­ut­ive au­thor­ity shall spe­cify that the of­fend­er make pay­ment with­in a peri­od of between one and six months.²⁸ It may stip­u­late pay­ment by in­stal­ments and on re­quest may ex­tend the peri­od al­lowed.

² If there is jus­ti­fied sus­pi­cion that the of­fend­er will fail to pay the mon­et­ary pen­alty, the ex­ec­ut­ive au­thor­ity may re­quest im­me­di­ate pay­ment or the pro­vi­sion of se­cur­ity.

³ If the of­fend­er fails to pay the mon­et­ary pen­alty with­in the spe­cified peri­od, the ex­ec­ut­ive au­thor­ity shall in­struct the debt col­lec­tion pro­ceed­ings provided their suc­cess is ex­pec­ted.

¹ In the event that the of­fend­er fails to pay the mon­et­ary pen­alty and it is not re­cov­er­able through debt col­lec­tion pro­ced­ures (Art. 35 para. 3), the of­fend­er shall serve a cus­todi­al sen­tence as the al­tern­at­ive to the mon­et­ary pen­alty. A daily pen­alty unit cor­res­ponds to one day in cus­tody. The ret­ro­spect­ive pay­ment of the mon­et­ary pen­alty leads to a cor­res­pond­ing re­duc­tion in the al­tern­at­ive cus­todi­al sen­tence.

² If the mon­et­ary pen­alty has been im­posed by an ad­min­is­trat­ive au­thor­ity, the court de­cides on the al­tern­at­ive cus­todi­al sen­tence.

^3–5 ...²⁹

¹ The min­im­um term of a cus­todi­al sen­tence is three days; a short­er cus­todi­al sen­tence in lieu of an un­paid mon­et­ary pen­alty (Art. 36) or fine (Art. 106) is re­served.

² The max­im­um term of a cus­todi­al sen­tence is 20 years. Where the law ex­pressly provides, the cus­todi­al sen­tence is for life

¹ The court may im­pose a cus­todi­al sen­tence in­stead of a mon­et­ary pen­alty if:

a.

a cus­todi­al sen­tence ap­pears ap­pro­pri­ate in or­der to pre­vent the of­fend­er from com­mit­ting fur­ther felon­ies or mis­de­mean­ours; or

b.

it is an­ti­cip­ated that it will not be pos­sible to en­force a mon­et­ary pen­alty.

² The court must ex­plain why it has de­cided to im­pose a cus­todi­al sen­tence.

³ The right is re­served to im­pose a cus­todi­al sen­tence in­stead of an un­paid mon­et­ary pen­alty (Art. 36).

¹ The court shall nor­mally sus­pend the ex­e­cu­tion of a mon­et­ary pen­alty or a cus­todi­al sen­tence of no more than two years un­less an un­sus­pen­ded sen­tence ap­pears to be ne­ces­sary in or­der to pre­vent the of­fend­er from com­mit­ting fur­ther felon­ies or mis­de­mean­ours.³³

² If the of­fend­er re­ceived a sus­pen­ded or un­sus­pen­ded cus­todi­al sen­tence of more than six months with­in the five years pri­or to the of­fence, the sen­tence may only be sus­pen­ded where the cir­cum­stances are es­pe­cially fa­vour­able.³⁴

³ The sus­pen­sion of the ex­e­cu­tion of a sen­tence may also be re­fused if the of­fend­er has failed to make a reas­on­able ef­fort to com­pensate for any loss or dam­age he may have caused.

⁴ A sus­pen­ded sen­tence may be com­bined with a fine in ac­cord­ance with Art­icle 106.³⁵

¹ The court may par­tially sus­pend the ex­e­cu­tion of a cus­todi­al sen­tence of at least one year and no more than three years if this is ne­ces­sary in or­der to take suf­fi­cient ac­count of the culp­ab­il­ity of the of­fend­er.³⁷

² The part of the sen­tence that must be ex­ecuted im­me­di­ately may not ex­ceed one half of the sen­tence.

³ Both the sus­pen­ded and the un­sus­pen­ded part must amount to at least six months.³⁸ The pro­vi­sions on the grant­ing of pa­role (Art. 86) do not ap­ply to the un­sus­pen­ded part of the sen­tence.

¹ If the court sus­pends the ex­e­cu­tion of a sen­tence in full or in part, it shall make the of­fend­er sub­ject to a pro­ba­tion­ary peri­od of from two to five years.

² The court may or­der pro­ba­tion as­sist­ance and im­pose con­duct or­ders for the dur­a­tion of the pro­ba­tion­ary peri­od.

³ The court shall ex­plain the im­port­ance and the con­sequences of the sus­pen­ded and par­tially sus­pen­ded sen­tence to the of­fend­er.

⁴ The pro­ba­tion­ary peri­od be­gins on no­ti­fic­a­tion of the judg­ment that is en­force­able.³⁹

If the of­fend­er is of good con­duct un­til the ex­piry of the pro­ba­tion­ary peri­od, the post­poned sen­tence is not ex­ecuted.

¹ If the of­fend­er com­mits a felony or mis­de­mean­our dur­ing the pro­ba­tion­ary peri­od and if it there­fore must be ex­pec­ted that he will com­mit fur­ther of­fences, the court shall re­voke the sus­pen­ded sen­tence or the sus­pen­ded part of the sen­tence. If the re­voked sen­tence and the new sen­tence are of the same type, they shall form a cu­mu­lat­ive sen­tence in ana­log­ous ap­plic­a­tion of Art­icle 49.⁴⁰

² If it is not ex­pec­ted that the of­fend­er will com­mit fur­ther of­fences, the court shall not re­voke the sus­pen­ded sen­tence. It may ad­mon­ish the of­fend­er or ex­tend the pro­ba­tion­ary peri­od by up to one half of the dur­a­tion spe­cified in the judg­ment. The court may or­der pro­ba­tion as­sist­ance and im­pose con­duct or­ders for the dur­a­tion of the ex­ten­ded pro­ba­tion­ary peri­od. If the ex­ten­sion be­gins after the ex­piry of the pro­ba­tion­ary peri­od, the ex­ten­ded peri­od be­gins on the day that it is ordered.

³ The court that judges the new felony or mis­de­mean­our also de­cides on re­voc­a­tion.

⁴ If the of­fend­er fails to at­tend for pro­ba­tion as­sist­ance or dis­reg­ards the con­duct or­ders, Art­icle 95 para­graphs 3–5 ap­ply.

⁵ Re­voc­a­tion may no longer be ordered if three years have elapsed since the ex­piry of the pro­ba­tion­ary peri­od.

¹ The court de­term­ines the sen­tence ac­cord­ing to the culp­ab­il­ity of the of­fend­er. It takes ac­count of the pre­vi­ous con­duct and the per­son­al cir­cum­stances of the of­fend­er as well as the ef­fect that the sen­tence will have on his life.

² Culp­ab­il­ity is as­sessed ac­cord­ing to the ser­i­ous­ness of the dam­age or danger to the leg­al in­terest con­cerned, the rep­re­hens­ib­il­ity of the con­duct, the of­fend­er's motives and aims, and the ex­tent to which the of­fend­er, in view of the per­son­al and ex­tern­al cir­cum­stances, could have avoided caus­ing the danger or dam­age.

The court shall re­duce the sen­tence if:

a.

the of­fend­er ac­ted:

1.

for hon­our­able motives,

2.

while in ser­i­ous dis­tress,

3.

while of the view that he was un­der ser­i­ous threat,

4.

at the be­hest of a per­son whom he was duty bound to obey or on whom he was de­pend­ent;

b.

the of­fend­er was ser­i­ously pro­voked by the con­duct of the per­son suf­fer­ing in­jury;

c.

the of­fend­er ac­ted in a state of ex­treme emo­tion that was ex­cus­able in the cir­cum­stances or while un­der ser­i­ous psy­cho­lo­gic­al stress;

d.

the of­fend­er has shown genu­ine re­morse, and in par­tic­u­lar has made re­par­a­tion for the in­jury, dam­age or loss caused, in­so­far as this may reas­on­ably be ex­pec­ted of him;

e.

the need for pun­ish­ment has been sub­stan­tially re­duced due to the time that has elapsed since the of­fence and the of­fend­er has been of good con­duct in this peri­od.

¹ If the court chooses to re­duce the sen­tence, it is not bound by the min­im­um pen­alty that the of­fence car­ries.

² The court may im­pose a dif­fer­ent form of pen­alty from that which the of­fence car­ries, but re­mains bound by the stat­utory max­im­um and min­im­um levels for that form of pen­alty.

¹ If the of­fend­er, by com­mit­ting one or more of­fences, has ful­filled the re­quire­ments for two or more pen­al­ties of the same form, the court shall im­pose the sen­tence for the most ser­i­ous of­fence at an ap­pro­pri­ately in­creased level. It may not, however, in­crease the max­im­um level of the sen­tence by more than half, and it is bound by the stat­utory max­im­um for that form of pen­alty.

² If the court must pass sen­tence on an of­fence that the of­fend­er com­mit­ted be­fore he was sen­tenced for a dif­fer­ent of­fence, it shall de­term­ine the sup­ple­ment­ary pen­alty so that the of­fend­er is not more severely pun­ished than he would have been had the sen­tences been im­posed at the same time.

³ If the of­fend­er com­mit­ted one or more of­fences be­fore reach­ing the age of 18, the court shall de­term­ine the cu­mu­lat­ive sen­tence in ac­cord­ance with para­graphs 1 and 2 such that it is not more severe than it would have been had sen­tences been im­posed sep­ar­ately.

Where a judg­ment must be jus­ti­fied, the court shall also spe­cify the cir­cum­stances taken in­to ac­count in de­term­in­ing the sen­tence and their weight­ing.

When de­term­in­ing the sen­tence, the court shall take ac­count of any time spent on re­mand that the of­fend­er has served in re­spect of the pro­ceed­ings in ques­tion or any oth­er pro­ceed­ings. One day in de­ten­tion cor­res­ponds to one daily pen­alty unit of a mon­et­ary pen­alty.⁴¹

The com­pet­ent au­thor­ity shall re­frain from pro­sec­ut­ing the of­fend­er, bring­ing him to court or pun­ish­ing him if the level of culp­ab­il­ity and con­sequences of the of­fence are neg­li­gible.

If the of­fend­er has made re­par­a­tion for the loss, dam­age or in­jury or made every reas­on­able ef­fort to right the wrong that he has caused, the com­pet­ent au­thor­ity shall re­frain from pro­sec­ut­ing him, bring­ing him to court or pun­ish­ing him if:

a.

a sus­pen­ded cus­todi­al sen­tence not ex­ceed­ing one year, a sus­pen­ded mon­et­ary pen­alty or a fine are suit­able as a pen­alty;

b.

the in­terest in pro­sec­u­tion of the gen­er­al pub­lic and of the per­sons harmed are neg­li­gible; and

c.

the of­fend­er has ad­mit­ted the of­fence.

If the of­fend­er is so ser­i­ously af­fected by the im­me­di­ate con­sequences of his act that a pen­alty would be in­ap­pro­pri­ate, the re­spons­ible au­thor­it­ies shall re­frain from pro­sec­ut­ing him, bring­ing him to court or pun­ish­ing him.

¹ The court shall re­frain from re­vok­ing a sus­pen­ded sen­tence and in the case of the pa­role from a re­call if the re­quire­ments for an ex­emp­tion from pun­ish­ment are met.

² The can­tons des­ig­nate the bod­ies re­spons­ible for the ad­min­is­tra­tion of crim­in­al justice as the com­pet­ent au­thor­it­ies un­der Art­icles 52, 53 and 54.

¹In a case of com­mon as­sault (Art. 123 no 2 para. 3–5), re­peated acts of ag­gres­sion (Art. 126 para. 2 let. b, b^bis and c), threat­en­ing be­ha­viour (Art. 180 para. 2) and co­er­cion (Art. 181), the pub­lic pro­sec­utor or the court may sus­pend the pro­ceed­ings if:⁴⁷

a.⁴⁸

the vic­tim:

1.

is the spouse of the of­fend­er and the of­fence was com­mit­ted dur­ing the mar­riage or with­in a year of di­vorce, or

2.

is the re­gistered part­ner of the of­fend­er and the of­fence was com­mit­ted dur­ing the re­gistered part­ner­ship or with­in a year of its dis­sol­u­tion, or

3.

is the hetero- or ho­mo­sexu­al part­ner of the of­fend­er or the ex-part­ner of the of­fend­er if they have been sep­ar­ated for less than a year; and

b.⁴⁹

the vic­tim or, if he or she lacks leg­al ca­pa­city, his or her leg­al rep­res­ent­at­ive re­quests this to be done; and

c.⁵⁰

sus­pen­sion ap­pears ap­pro­pri­ate in or­der to sta­bil­ise or im­prove the vic­tim’s situ­ation.

² The pub­lic pro­sec­utor or the court may dur­ing the peri­od of sus­pen­sion re­quire the ac­cused to at­tend a course on vi­ol­ence pre­ven­tion. The pub­lic pro­sec­utor or the court shall no­ti­fy the au­thor­ity or or­gan­isa­tion com­pet­ent un­der can­ton­al law for mat­ters re­lat­ing to do­mest­ic vi­ol­ence about the meas­ures taken.⁵¹

³ Sus­pen­sion is not per­mit­ted if:

a.

the ac­cused has been con­victed of a felony or mis­de­mean­our against life and limb, against liberty, or against sexu­al in­teg­rity;

b.

he or she has re­ceived a sen­tence or been made sub­ject to a meas­ure; and

c.

the vic­tim of the of­fence is a per­son lis­ted in para­graph 1 let­ter a.⁵²

⁴ Sus­pen­sion is lim­ited to six months. The pub­lic pro­sec­utor or the court shall re­sume the pro­ceed­ings if the vic­tim or, if he or she lacks leg­al ca­pa­city, his or her leg­al rep­res­ent­at­ive re­quests this to be done or it tran­spires that the sus­pen­sion has neither sta­bil­ised nor im­proved the vic­tim’s situ­ation.⁵³

⁵ Be­fore the sus­pen­sion ends, the pub­lic pro­sec­utor or the court shall con­duct an as­sess­ment. If the vic­tim’s situ­ation has sta­bil­ised or im­proved, it shall or­der the aban­don­ment of the pro­ceed­ings.⁵⁴

¹ A meas­ure is ordered if:

a.

a pen­alty alone is not suf­fi­cient to counter the risk of fur­ther of­fend­ing by the of­fend­er;

b.

the of­fend­er re­quires treat­ment or treat­ment is re­quired in the in­terest of pub­lic safety; and

c.

the re­quire­ments of Art­icles 59–61, 63 or 64 are ful­filled.

² The or­der­ing of a meas­ure re­quires that the re­lated in­ter­ven­tion in the per­son­al rights of the of­fend­er is not un­reas­on­able in view of the prob­ab­il­ity and ser­i­ous­ness of ad­di­tion­al of­fences.

³ In or­der­ing a meas­ure un­der Art­icles 59–61, 63 and 64 and in modi­fy­ing the sanc­tion in ac­cord­ance with Art­icle 65, the court shall base its de­cision on an ex­pert as­sess­ment. This shall provide an opin­ion on:

a.

the ne­ces­sity and the pro­spects of suc­cess of any treat­ment of the of­fend­er;

b.

the nature and the prob­ab­il­ity of pos­sible ad­di­tion­al of­fences; and

c.

the ways in which the meas­ure may be im­ple­men­ted.

⁴ If the of­fend­er has com­mit­ted an of­fence in terms of Art­icle 64 para­graph 1, the as­sess­ment must be con­duc­ted by an ex­pert who has neither treated the of­fend­er be­fore nor been re­spons­ible in any oth­er way for his care.

^4bis If con­sid­er­a­tion is giv­en to or­der­ing lifelong in­car­cer­a­tion in ac­cord­ance with Art­icle 64 para­graph 1^bis, the court shall base its de­cision on re­ports from at least two ex­per­i­enced spe­cial­ists who are in­de­pend­ent of each oth­er and who have neither treated the of­fend­er nor been re­spons­ible in any oth­er way for his care.⁵⁵

⁵ Nor­mally the court only or­ders a meas­ure if a suit­able in­sti­tu­tion is avail­able.

⁶ Where the re­quire­ments for a meas­ure are no longer ful­filled, it is re­voked.

¹ If two or more meas­ures are equally suit­able but only one is ne­ces­sary, the court shall or­der the meas­ure that is more con­veni­ent for the of­fend­er.

² If two or more meas­ures are ne­ces­sary, the court may or­der these con­cur­rently.

¹ If the re­quire­ments for both a pen­alty and a meas­ure are ful­filled, the court shall or­der both sanc­tions.

² The im­ple­ment­a­tion of a meas­ure un­der Art­icles 59–61 takes pre­ced­ence over a cus­todi­al sen­tence that is im­posed at the same time or which is ex­ecuted through re­voc­a­tion of a sus­pen­ded sen­tence or re­call to cus­tody. Like­wise, the re­act­iv­a­tion of the ex­e­cu­tion of a meas­ure in ac­cord­ance with Art­icle 62a takes pre­ced­ence over a cu­mu­lat­ive sen­tence im­posed at the same time.

³ The depriva­tion of liberty as­so­ci­ated with the meas­ure must be taken in­to ac­count in de­term­in­ing the pen­alty.

¹ ...⁵⁶

² The thera­peut­ic in­sti­tu­tions in terms of Art­icles 59–61 must be man­aged sep­ar­ately from pen­al in­sti­tu­tions.

¹ If the of­fend­er is suf­fer­ing from a ser­i­ous men­tal dis­order, the court may or­der in-pa­tient treat­ment if:

a.

the of­fend­er's men­tal dis­order was a factor in a felony or mis­de­mean­our that he com­mit­ted; and

b.

it is ex­pec­ted that the meas­ure will re­duce the risk of fur­ther of­fences be­ing com­mit­ted in which his men­tal dis­order is a factor.

² The in-pa­tient treat­ment is car­ried out in an ap­pro­pri­ate psy­chi­at­ric in­sti­tu­tion or thera­peut­ic in­sti­tu­tion.

³ If there is a risk of the of­fend­er ab­scond­ing or com­mit­ting fur­ther of­fences, he shall be treated in a se­cure in­sti­tu­tion. He may also be treated in a pen­al in­sti­tu­tion in ac­cord­ance with Art­icle 76 para­graph 2, provided it is guar­an­teed that the re­quired thera­peut­ic treat­ment can be provided by spe­cial­ist staff.⁵⁷

⁴ The depriva­tion of liberty as­so­ci­ated with in-pa­tient treat­ment nor­mally amounts to a max­im­um of five years. If the re­quire­ments for pa­role have not yet been ful­filled after five years and if it is ex­pec­ted that the meas­ure will re­duce the risk of fur­ther felon­ies or mis­de­mean­ours be­ing com­mit­ted in which his men­tal dis­order is a factor, the court may at the re­quest of the ex­ec­ut­ive au­thor­ity or­der the ex­ten­sion of the meas­ure for a max­im­um of five years in any case.

¹ If the of­fend­er is de­pend­ent on ad­dict­ive sub­stances or in any oth­er way de­pend­ent, the court may or­der in-pa­tient treat­ment if:

a.

the of­fend­er's de­pend­ence was a factor in the felony or mis­de­mean­our that he com­mit­ted; and

b.

it is ex­pec­ted that treat­ment will re­duce the risk of fur­ther of­fences be­ing com­mit­ted in which his de­pend­ence is a factor.

² The court shall take ac­count of the of­fend­er's re­quest for and read­i­ness to un­der­go treat­ment.

³ The treat­ment is car­ried out in a spe­cial­ised in­sti­tu­tion or, if ne­ces­sary, in a psy­chi­at­ric hos­pit­al. It must be ad­jus­ted to the spe­cial needs of the of­fend­er and the state of his health.

⁴ The depriva­tion of liberty as­so­ci­ated with in-pa­tient treat­ment shall nor­mally amount to a max­im­um of three years. If the re­quire­ments for pa­role have not yet been ful­filled after three years and if it is ex­pec­ted that the meas­ure will re­duce the risk of fur­ther felon­ies or mis­de­mean­ours be­ing com­mit­ted in which his de­pend­ence is a factor, the court may at the re­quest of the ex­ec­ut­ive au­thor­ity on one oc­ca­sion only or­der the ex­ten­sion of the meas­ure for a max­im­um of one fur­ther year. In the event of an ex­ten­sion and the re­call to cus­tody fol­low­ing pa­role, the depriva­tion of liberty as­so­ci­ated with the meas­ure may not ex­ceed a max­im­um of six years.

¹ If the of­fend­er was un­der 25 years of age at the time of the of­fence and if he is suf­fer­ing from a ser­i­ous de­vel­op­ment­al dis­order, the court may com­mit him to an in­sti­tu­tion for young adults if:

a.

the of­fend­er's de­vel­op­ment­al dis­order was a factor in the felony or mis­de­mean­our that he com­mit­ted; and

b.

it is ex­pec­ted that the meas­ure will re­duce the risk of fur­ther of­fences be­ing com­mit­ted in which his de­vel­op­ment­al dis­order is a factor.

² In­sti­tu­tions for young adults must be man­aged sep­ar­ately from oth­er in­sti­tu­tions and fa­cil­it­ies un­der this Code.

³ The of­fend­er should be taught the skills needed to live in­de­pend­ently and without fur­ther of­fend­ing. In par­tic­u­lar, he should be en­cour­aged to un­der­go ba­sic and ad­vanced vo­ca­tion­al and pro­fes­sion­al train­ing.

⁴ The depriva­tion of liberty as­so­ci­ated with the meas­ure amounts to a max­im­um of four years. In the event of the re­call to cus­tody fol­low­ing re­lease on pa­role, it may not ex­ceed a max­im­um of six years. The meas­ure must be re­voked when the of­fend­er reaches the age of 30.

⁵ If the of­fend­er was con­victed of an of­fence com­mit­ted be­fore he was 18 years of age, the meas­ure may be im­ple­men­ted in an in­sti­tu­tion for minors.

¹ The of­fend­er is re­leased on pa­role from un­der­go­ing an in-pa­tient meas­ure as soon as his con­di­tion jus­ti­fies his be­ing giv­en the liberty to prove him­self.

² In the case of re­lease on pa­role from a meas­ure un­der Art­icle 59, the pro­ba­tion­ary peri­od amounts to one to five years, and in the case of re­lease on pa­role from a meas­ure un­der Art­icles 60 and 61, from one to three years.

³ The per­son re­leased on pa­role may be re­quired to un­der­go out-pa­tient treat­ment dur­ing the pro­ba­tion­ary peri­od. The ex­ec­ut­ive au­thor­ity may or­der pro­ba­tion as­sist­ance and is­sue con­duct or­ders for the dur­a­tion the pro­ba­tion­ary peri­od.

⁴ If on ex­piry of the pro­ba­tion­ary peri­od, a con­tinu­ation of the out-pa­tient treat­ment, the pro­ba­tion as­sist­ance or the con­duct or­ders is con­sidered ne­ces­sary in or­der to re­duce the risk of fur­ther felon­ies and mis­de­mean­ours be­ing com­mit­ted that are as­so­ci­ated with the con­di­tion of the per­son re­leased on pa­role, the court may at the re­quest of the ex­ec­ut­ive au­thor­ity ex­tend the pro­ba­tion­ary peri­od as fol­lows:

a.

by one to five years in the case of re­lease on pa­role from a meas­ure in ac­cord­ance with Art­icle 59;

b.

by one to three years in the case of re­lease on pa­role from a meas­ure un­der Art­icles 60 and 61.

⁵ The pro­ba­tion­ary peri­od fol­low­ing re­lease on pa­role from a meas­ure un­der Art­icles 60 and 61 may not ex­ceed six years.

⁶ If the of­fend­er has com­mit­ted an of­fence in terms of Art­icle 64 para­graph 1, the pro­ba­tion­ary peri­od may be ex­ten­ded as of­ten as is con­sidered ne­ces­sary to pre­vent fur­ther such of­fences be­ing com­mit­ted.

¹ If a per­son re­leased on pa­role com­mits an of­fence dur­ing the pro­ba­tion­ary peri­od and thus demon­strates that the risk that the meas­ure was in­ten­ded to re­duce is still present, the court as­sess­ing the new of­fence may, after con­sult­ing the ex­ec­ut­ive au­thor­ity:

a.

or­der his re­call to cus­tody;

b.

re­voke the meas­ure and, provided the rel­ev­ant re­quire­ments are ful­filled, or­der a new meas­ure; or

c.

re­voke the meas­ure and, provided the rel­ev­ant re­quire­ments are ful­filled, or­der the ex­e­cu­tion of a cus­todi­al sen­tence.

² If as a res­ult of the new of­fence the re­quire­ments for an un­sus­pen­ded cus­todi­al sen­tence are ful­filled and if this sen­tence runs con­cur­rently with a cus­todi­al sen­tence that has been sus­pen­ded to give pre­ced­ence to the meas­ure, the court shall im­pose a cu­mu­lat­ive sen­tence in ap­plic­a­tion of Art­icle 49.

³ If as a res­ult of the con­duct of the per­son re­leased on pa­role dur­ing the pro­ba­tion­ary peri­od there is a ser­i­ous ex­pect­a­tion that he could com­mit an of­fence in terms of Art­icle 64 para­graph 1, the court that ordered the meas­ure may, at the re­quest of the ex­ec­ut­ive au­thor­ity, or­der a re­call to cus­tody.

⁴ For a meas­ure un­der Art­icle 59, the re­call to cus­tody is for a max­im­um peri­od of five years, and for meas­ures un­der Art­icles 60 and 61 for a max­im­um peri­od of two years.

⁵ If the court de­cides against a re­call to cus­tody or a new meas­ure, it may:

a.

ad­mon­ish the per­son re­leased on pa­role;

b.

or­der out-pa­tient treat­ment or pro­ba­tion as­sist­ance;

c.

im­pose con­duct or­ders on the per­son re­leased on pa­role; and

d.

ex­tend the pro­ba­tion­ary peri­od by from one to five years in the case of a meas­ure un­der Art­icle 59, and by from one to three years in the case of a meas­ure un­der Art­icles 60 and 61.

⁶ If the per­son re­leased on pa­role fails to com­ply with the terms of pro­ba­tion as­sist­ance or dis­reg­ards the con­duct or­ders, Art­icle 95 para­graphs 3–5 ap­plies.

¹ If the per­son re­leased on pa­role suc­cess­fully com­pletes the pro­ba­tion­ary peri­od, he is gran­ted fi­nal re­lease.

² The of­fend­er is gran­ted fi­nal re­lease if the max­im­um dur­a­tion of a meas­ure un­der Art­icles 60 and 61 is reached and the re­quire­ments for the pa­role ap­ply.

³ If depriva­tion of liberty as­so­ci­ated with the meas­ure is for a short­er peri­od than the sus­pen­ded cus­todi­al sen­tence, the re­mainder of the sen­tence is not ex­ecuted.

¹ A meas­ure is ter­min­ated, if:

a.

its im­ple­ment­a­tion or con­tinu­ation ap­pears to have no pro­spect of suc­cess;

b.

the max­im­um dur­a­tion un­der Art­icles 60 and 61 has been reached and the re­quire­ments for the pa­role do not ap­ply; or

c.

a suit­able in­sti­tu­tion does not ex­ist or no longer ex­ists.

² If the depriva­tion of liberty as­so­ci­ated with the meas­ure is for a short­er peri­od than the sus­pen­ded cus­todi­al sen­tence, the re­mainder of the sen­tence is ex­ecuted. If the re­quire­ments for pa­role or a sus­pen­ded cus­todi­al sen­tence ap­ply in re­la­tion to the re­mainder of the sen­tence, ex­e­cu­tion of the sen­tence is sus­pen­ded.

³ In­stead of or­der­ing the ex­e­cu­tion of the sen­tence, the court may or­der an­oth­er meas­ure if it is to be ex­pec­ted that such a meas­ure will re­duce the risk of the of­fend­er com­mit­ting fur­ther felon­ies and mis­de­mean­ours in which his con­di­tion is a factor.

⁴ If there is a ser­i­ous ex­pect­a­tion that if a meas­ure ordered in re­spect of an of­fence in terms of Art­icle 64 para­graph 1 is ter­min­ated, the of­fend­er will com­mit fur­ther such of­fences, the court may at the re­quest of the ex­ec­ut­ive au­thor­ity or­der his in­def­in­ite in­car­cer­a­tion.

⁵ If the com­pet­ent au­thor­ity re­gards an adult pro­tec­tion meas­ure to be ap­pro­pri­ate on the ter­min­a­tion of the meas­ure, it shall in­form the adult pro­tec­tion au­thor­ity of this.⁵⁸

⁶ Fur­ther­more, the court may ter­min­ate an in-pa­tient thera­peut­ic meas­ure be­fore or dur­ing its im­ple­ment­a­tion and or­der an­oth­er in-pa­tient thera­peut­ic meas­ure in its place if it is ex­pec­ted that the new meas­ure has a sig­ni­fic­antly bet­ter chance of re­du­cing the risk of the of­fend­er com­mit­ting fur­ther felon­ies and mis­de­mean­ours in which his con­di­tion is a factor.

¹ The com­pet­ent au­thor­ity shall on re­quest or ex of­fi­cio con­sider wheth­er and when the of­fend­er should be re­leased on pa­role from the im­ple­ment­a­tion of the meas­ure or wheth­er the meas­ure should be ter­min­ated. It makes a de­cision on such mat­ters at least once each year. It shall first grant a hear­ing to the of­fend­er and ob­tain a re­port from the gov­ern­ing body of the rel­ev­ant in­sti­tu­tion.

² If the of­fend­er com­mit­ted an of­fence in terms of Art­icle 64 para­graph 1, the com­pet­ent au­thor­ity shall reach its de­cision on the basis of the ex­pert opin­ion of an in­de­pend­ent spe­cial­ist and after hear­ing a com­mit­tee com­pris­ing rep­res­ent­at­ives of the pro­sec­u­tion ser­vices, the ex­e­cu­tion au­thor­it­ies and one or more psy­chi­at­rists. The spe­cial­ists and psy­chi­at­rists con­cerned must not be those re­spons­ible for the treat­ment or care of the of­fend­er.

¹ If the of­fend­er is suf­fer­ing from a ser­i­ous men­tal dis­order or if he is de­pend­ent on ad­dict­ive sub­stances or in any oth­er way, the court may or­der that he re­ceive out-pa­tient rather than in-pa­tient treat­ment if:

a.

the of­fend­er com­mits an of­fence in which his con­di­tion is a factor; and

b.

it is ex­pec­ted that the meas­ure will re­duce the risk of fur­ther of­fences be­ing com­mit­ted in which his con­di­tion is a factor.

² The court may de­fer the ex­e­cu­tion of an un­sus­pen­ded cus­todi­al sen­tence im­posed at the same time, a sus­pen­ded cus­todi­al sen­tence due for ex­e­cu­tion fol­low­ing re­voc­a­tion of sus­pen­sion and the re­mainder of a sen­tence due for ex­e­cu­tion fol­low­ing a re­call to cus­tody to give pre­ced­ence to out-pa­tient treat­ment in or­der to take ac­count of the form of the treat­ment. It may or­der pro­ba­tion as­sist­ance and is­sue con­duct or­ders for the dur­a­tion the treat­ment.

³ The com­pet­ent au­thor­ity may or­der the of­fend­er to be treated tem­por­ar­ily as an in-pa­tient if this is re­quired in or­der to ini­ti­ate the out-pa­tient treat­ment. The peri­od of in-pa­tient treat­ment may not ex­ceed two months.

⁴ The peri­od of out-pa­tient treat­ment may not nor­mally ex­ceed five years. If the con­tinu­ation of the out-pa­tient treat­ment is con­sidered ne­ces­sary at the end of the five-year peri­od in or­der to re­duce the risk of fur­ther felon­ies and mis­de­mean­ours in which a men­tal dis­order is a factor, the court may at the re­quest of the ex­ec­ut­ive au­thor­ity con­tin­ue the treat­ment for a fur­ther peri­od of from one to five years.

¹ The com­pet­ent au­thor­ity shall as­sess at least once each year wheth­er the out-pa­tient treat­ment should be con­tin­ued or ter­min­ated. It shall first grant a hear­ing to the of­fend­er and ob­tain a re­port from the ther­ap­ists.

² The out-pa­tient treat­ment is ter­min­ated by the com­pet­ent au­thor­ity if:

a.

it has been suc­cess­fully com­pleted;

b.

its con­tinu­ation ap­pears to have no pro­spect of suc­cess; or

c.

the stat­utory max­im­um dur­a­tion for the treat­ment of an al­co­hol, drug or thera­peut­ic product de­pend­ent per­son has been reached.

³ If the of­fend­er com­mits a fur­ther of­fence dur­ing the out-pa­tient treat­ment and thus demon­strates that this form of treat­ment will prob­ably be un­suc­cess­ful in avert­ing the risk of­fences be­ing com­mit­ted in which the con­di­tion of the of­fend­er is a factor, the un­suc­cess­ful treat­ment shall be ter­min­ated by or­der of the court as­sess­ing the new of­fence.

⁴ If the of­fend­er fails to com­ply with the con­di­tions of pro­ba­tion as­sist­ance or if he dis­reg­ards the con­duct or­ders, Art­icle 95 para­graphs 3–5 ap­plies.

¹ If the out-pa­tient treat­ment has been suc­cess­fully com­pleted, the sus­pen­ded cus­todi­al sen­tence is not ex­ecuted.

² If out-pa­tient treat­ment is ter­min­ated due to there be­ing no pro­spect of suc­cess (Art. 63a para. 2 let. b), the stat­utory max­im­um dur­a­tion be­ing reached (Art. 63a para. 2 let. c) or its be­ing un­suc­cess­ful (Art. 63a para. 3), the sus­pen­ded cus­todi­al sen­tence is ex­ecuted.

³ If out-pa­tient treat­ment con­duc­ted while the of­fend­er is at liberty is con­sidered a risk to third parties, the sus­pen­ded cus­todi­al sen­tence is ex­ecuted and the out-pa­tient treat­ment con­tin­ued while the cus­todi­al sen­tence is be­ing served.

⁴ The court de­cides on the ex­tent to which the depriva­tion of liberty as­so­ci­ated with the out-pa­tient treat­ment is taken in­to ac­count in de­term­in­ing the cus­todi­al sen­tence. If the re­quire­ments for pa­role or a sus­pen­ded cus­todi­al sen­tence ap­ply in re­la­tion to the re­mainder of the sen­tence, ex­e­cu­tion of the sen­tence is sus­pen­ded.

⁵ In­stead of the ex­e­cu­tion of the sen­tence the court may or­der an in-pa­tient thera­peut­ic meas­ure un­der Art­icles 59–61 if it is to be ex­pec­ted that this will re­duce the risk of the of­fend­er com­mit­ting fur­ther felon­ies or mis­de­mean­ours in which his con­di­tion is a factor.

¹ The court shall or­der in­def­in­ite in­car­cer­a­tion if the of­fend­er has com­mit­ted murder, in­ten­tion­al hom­icide, ser­i­ous as­sault, rape, rob­bery, host­age tak­ing, ar­son, en­dan­ger­ing life or an­oth­er of­fence that car­ries a max­im­um sen­tence of five or more years by which he has caused or in­ten­ded to cause ser­i­ous det­ri­ment to the phys­ic­al, psy­cho­lo­gic­al or sexu­al in­teg­rity of an­oth­er per­son, and if:⁵⁹

a.

due to the per­son­al­ity traits of the of­fend­er, the cir­cum­stances of the of­fence and his gen­er­al per­son­al cir­cum­stances, it is ser­i­ously ex­pec­ted that he will com­mit fur­ther of­fences of the same type; or

b.

due to a per­man­ent or long-term men­tal dis­order of con­sid­er­able grav­ity that was a factor in the of­fence, it is ser­i­ously ex­pec­ted that the of­fend­er will com­mit fur­ther of­fences of the same type and the or­der­ing of a meas­ure in ac­cord­ance with Art­icle 59 does not prom­ise any suc­cess.

^1bis The court shall or­der lifelong in­car­cer­a­tion if the of­fend­er has com­mit­ted murder, in­ten­tion­al hom­icide, ser­i­ous as­sault, rob­bery, rape, in­de­cent as­sault, false im­pris­on­ment or ab­duc­tion, host­age-tak­ing, en­forced dis­ap­pear­ance of per­sons, traf­fick­ing in hu­man be­ings, gen­o­cide, or a felony un­der the head­ing of crimes against hu­man­ity or war crimes (Title Twelve) and if the fol­low­ing re­quire­ments are met:⁶⁰

a.

the of­fend­er, by com­mit­ting the of­fence, caused or in­ten­ded to cause ser­i­ous det­ri­ment to the phys­ic­al, psy­cho­lo­gic­al or sexu­al in­teg­rity of an­oth­er per­son.

b.

There is a high prob­ab­il­ity that the of­fend­er will com­mit one of these felon­ies again.

c.

The of­fend­er is as­sessed as be­ing per­man­ently un­treat­able, as the treat­ment of­fers no long-term pro­spect of suc­cess.⁶¹

² The ex­e­cu­tion of the cus­todi­al sen­tence takes pri­or­ity over in­def­in­ite in­car­cer­a­tion. The pro­vi­sions on pa­role in re­la­tion to the cus­todi­al sen­tence (Art. 86–88) do not ap­ply.⁶²

³ If dur­ing the ex­e­cu­tion of the cus­todi­al sen­tence, it is ex­pec­ted that the of­fend­er will prove to be of good be­ha­viour when at liberty, the court shall or­der pa­role from the cus­todi­al sen­tence at the earli­est from the time when the of­fend­er has served two thirds of a spe­cif­ic cus­todi­al sen­tence or 15 years of a life sen­tence. The court that ordered in­def­in­ite in­car­cer­a­tion is re­spons­ible for the de­cision on pa­role. In ad­di­tion, Art­icle 64a ap­plies.⁶³

⁴ In­def­in­ite in­car­cer­a­tion is ex­ecuted in a thera­peut­ic in­sti­tu­tion or in a pen­al in­sti­tu­tion in ac­cord­ance with Art­icle 76 para­graph 2. Pub­lic safety must be guar­an­teed. The of­fend­er re­ceives psy­chi­at­ric care if this is ne­ces­sary.

¹ The of­fend­er is re­leased on pa­role from in­def­in­ite in­car­cer­a­tion in ac­cord­ance with Art­icle 64 para­graph 1 as soon as it is ex­pec­ted that he will be of good be­ha­viour when at liberty.⁶⁴ The pro­ba­tion­ary peri­od amounts to two to five years. For the dur­a­tion of the pro­ba­tion­ary peri­od, pro­ba­tion as­sist­ance may be ordered and con­duct or­ders may be im­posed.

² If on ex­piry of the pro­ba­tion­ary peri­od a con­tinu­ation of the pro­ba­tion as­sist­ance or the con­duct or­ders is con­sidered to be ne­ces­sary in or­der to re­duce the risk of fur­ther of­fences in terms of Art­icle 64 para­graph 1, the court may at the re­quest of the ex­ec­ut­ive au­thor­ity ex­tend the pro­ba­tion­ary peri­od by a fur­ther two to five years.

³ If due to his con­duct dur­ing the pro­ba­tion­ary peri­od, it is ser­i­ously ex­pec­ted that the of­fend­er may com­mit fur­ther of­fences in terms of Art­icle 64 para­graph 1, the court at the re­quest of the ex­ec­ut­ive au­thor­ity shall or­der his re­call to cus­tody.

⁴ If the of­fend­er when re­leased on pa­role fails to com­ply with the con­di­tions of pro­ba­tion as­sist­ance or dis­reg­ards the con­duct or­ders, Art­icle 95 para­graphs 3–5 ap­plies.

⁵ If the of­fend­er when re­leased on pa­role is of good be­ha­viour un­til the ex­piry of the pro­ba­tion­ary peri­od, he is gran­ted fi­nal re­lease.

¹ The com­pet­ent au­thor­ity shall con­sider on re­quest or ex of­fi­cio:

a.

at least once an­nu­ally, and for the first time after two years have lapsed, wheth­er and when the of­fend­er may be re­leased on pa­role from in­def­in­ite in­car­cer­a­tion (Art. 64a para. 1);

b.

at least every two years, and for the first time be­fore in­def­in­ite in­car­cer­a­tion takes ef­fect, wheth­er the re­quire­ments for an in-pa­tient thera­peut­ic treat­ment have been ful­filled and wheth­er a re­lated ap­plic­a­tion should there­fore be made to the com­pet­ent court (Art. 65 para. 1).

² The com­pet­ent au­thor­ity makes its de­cisions in terms of para­graph 1 based on:

a.

a re­port from the in­sti­tu­tion board;

b.

an in­de­pend­ent spe­cial­ist as­sess­ment in terms of Art­icle 56 para­graph 4;

c.

its hear­ing of a com­mit­tee in ac­cord­ance with Art­icle 62d para­graph 2;

d.

its hear­ing of the of­fend­er.

¹ In cases of lifelong in­car­cer­a­tion un­der Art­icle 64 para­graph 1^bis the com­pet­ent au­thor­ity shall con­sider ex of­fi­cio or on ap­plic­a­tion wheth­er there are any new sci­entif­ic find­ings that lead to the ex­pect­a­tion that the of­fend­er can be treated so that he will no longer pose a risk to the pub­lic. It de­cides on the basis of a re­port from the Fed­er­al Com­mis­sion for the As­sess­ment of the Treat­ab­il­ity of Of­fend­ers sub­ject to Lifelong In­car­cer­a­tion.

² If the com­pet­ent au­thor­ity con­cludes that the of­fend­er can be treated, it shall of­fer him the op­tion of treat­ment. Treat­ment is car­ried out in a se­cure in­sti­tu­tion. Un­til the or­der im­pos­ing lifelong in­car­cer­a­tion has been re­voked in ac­cord­ance with para­graph 3, the pro­vi­sions on the ex­e­cu­tion of lifelong in­car­cer­a­tion con­tin­ue to ap­ply.

³ If the treat­ment demon­strates that the risk posed by the of­fend­er has been con­sid­er­ably re­duced and may be re­duced to the ex­tent that he no longer poses a risk to the pub­lic, the court shall re­voke the or­der im­pos­ing lifelong in­car­cer­a­tion and or­der an in-pa­tient thera­peut­ic meas­ure in ac­cord­ance with Art­icles 59–61 in a se­cure in­sti­tu­tion.

⁴ The court may grant the of­fend­er pa­role from lifelong in­car­cer­a­tion if he no longer poses a risk to the pub­lic due to old age, ser­i­ous ill­ness or on oth­er grounds. Pa­role is gov­erned by Art­icle 64a.

⁵ The court that ordered lifelong in­car­cer­a­tion is re­spons­ible for de­cid­ing wheth­er pa­role should be gran­ted. It bases its de­cision on re­ports from at least two ex­per­i­enced spe­cial­ists who are in­de­pend­ent of each oth­er and who have neither treated the of­fend­er nor been re­spons­ible in any oth­er way for his care.

⁶ Para­graphs 1 and 2 also ap­ply dur­ing the ex­e­cu­tion of the cus­todi­al sen­tence that pre­cedes lifelong in­car­cer­a­tion. Lifelong in­car­cer­a­tion shall be re­voked in ac­cord­ance with para­graph 3 at the earli­est when the of­fend­er has served two thirds of a spe­cif­ic cus­todi­al sen­tence or 15 years of a life sen­tence.

¹ If an of­fend­er ful­fils the re­quire­ments for an in-pa­tient thera­peut­ic meas­ure in terms of Art­icles 59–61 be­fore or dur­ing the ex­e­cu­tion of a cus­todi­al sen­tence or of in­def­in­ite in­car­cer­a­tion in ac­cord­ance with Art­icle 64 para­graph 1, the court may or­der this meas­ure ret­ro­spect­ively.⁶⁷ The com­pet­ent court is the court that im­posed the sen­tence or ordered in­def­in­ite in­car­cer­a­tion. The ex­e­cu­tion of any re­mainder of the sen­tence is de­ferred.

² If dur­ing the ex­e­cu­tion of the cus­todi­al sen­tence, new in­form­a­tion or evid­ence comes to light to the ef­fect that the re­quire­ments for in­def­in­ite in­car­cer­a­tion are ful­filled and already ap­plied at the time of con­vic­tion al­though the court could not have had know­ledge of this, the court may or­der in­def­in­ite in­car­cer­a­tion ret­ro­spect­ively. Jur­is­dic­tion and pro­ced­ure are de­term­ined by the rules that ap­ply to a re­view (Arts 410−415 Crim­in­al Pro­ced­ure Code⁶⁸).^{69 70}

¹ If there is the risk that a per­son will com­mit a felony or mis­de­mean­our that he has threatened to com­mit, or if a per­son con­victed of a felony or of a mis­de­mean­our in­dic­ates the clear in­ten­tion to re­peat the of­fence, the court may, at the re­quest of the per­son threatened, ob­tain a prom­ise from the of­fend­er that he will not com­mit the of­fence and re­quire him to de­pos­it ap­pro­pri­ate se­cur­ity there­for.

² If he re­fuses to make the prom­ise, or fails to de­pos­it the se­cur­ity with­in the spe­cified peri­od, the court may re­quire him to make the prom­ise or de­pos­it the se­cur­ity by im­pos­ing a peri­od of de­ten­tion for se­cur­ity reas­ons. The peri­od of de­ten­tion for se­cur­ity reas­ons may not be for more than two months. It is ex­ecuted in the same way as a short cus­todi­al sen­tence (Art. 79⁷¹).

³ If the of­fend­er com­mits the felony or the mis­de­mean­our with­in two years of de­pos­it­ing the se­cur­ity, the se­cur­ity is for­feited to the State. If no of­fence is com­mit­ted, the se­cur­ity is re­turned.

¹ The court shall ex­pel for­eign na­tion­als from Switzer­land for a peri­od of 5–15 years if they are con­victed of any of the fol­low­ing of­fences, ir­re­spect­ive of the sen­tence im­posed:

a.

in­ten­tion­al hom­icide (Art. 111), murder (Art. 112), man­slaughter (Art. 113), in­cit­ing and as­sist­ing sui­cide (Art. 115), il­leg­al abor­tion (Art. 118 para. 1 and 2);

b.⁷³

ser­i­ous as­sault (Art. 122), fe­male gen­it­al mu­til­a­tion (Art. 124 para. 1), aban­don­ment (Art. 127), en­dan­ger­ing life (Art. 129), at­tack (Art. 134), rep­res­ent­a­tions of vi­ol­ence (Art. 135 para. 1 second sen­tence);

c.⁷⁴

ag­grav­ated mis­ap­pro­pri­ation (Art. 138 no 2), ag­grav­ated theft (Art. 139 no 3), rob­bery (Art. 140), fraud for com­mer­cial gain (Art. 146 para. 2), com­puter fraud for com­mer­cial gain (Art. 147 para. 2), mis­use of a cheque card or cred­it card for com­mer­cial gain (Art. 148 para. 2), ag­grav­ated ex­tor­tion (Art. 156 para. 2–4), prof­it­eer­ing for com­mer­cial gain (Art. 157 no 2), hand­ling stolen goods for com­mer­cial gain (Art. 160 no 2);

d.

theft (Art. 139) in con­junc­tion with un­law­ful entry (Art. 186);

e.

fraud (Art. 146 para. 1) re­lated to so­cial in­sur­ance or so­cial as­sist­ance, un­law­ful claims for so­cial in­sur­ance or so­cial as­sist­ance be­ne­fits (Art. 148a para. 1);

f.⁷⁵

fraud (Art. 146 para. 1), fraud in re­la­tion to ad­min­is­trat­ive ser­vices and charges (Art. 14 para. 1–3 of the Fed­er­al Act of 22 March 1974⁷⁶ on Ad­min­is­trat­ive Crim­in­al Law) or tax fraud, mis­ap­pro­pri­ation of taxes de­duc­ted at source or any oth­er of­fence re­lated to pub­lic charges that car­ries a max­im­um pen­alty of a one-year cus­todi­al sen­tence or more;

g.

forced mar­riage, forced re­gistered part­ner­ship (Art. 181a), traf­fick­ing in hu­man be­ings (Art. 182), false im­pris­on­ment and ab­duc­tion (Art. 183), ag­grav­ated false im­pris­on­ment and ab­duc­tion (Art. 184), host­age tak­ing (Art. 185);

h.⁷⁷

sexu­al acts with chil­dren (Art. 187 nos 1 and 1^bis), sexu­al acts with de­pend­ent per­sons (Art. 188), in­de­cent as­sault (Art. 189 paras 2 and 3), rape (Art. 190), sexu­al acts with per­sons in­cap­able of prop­er judge­ment or res­ist­ance (Art. 191), ex­ploit­a­tion of a per­son in a po­s­i­tion of need or of de­pend­ency (Art. 193), de­cep­tion as to the sexu­al char­ac­ter of an act (Art. 193a), en­cour­aging pros­ti­tu­tion (Art. 195), por­no­graphy (Art. 197 para. 4 second sen­tence);

i.⁷⁸

ar­son (Art. 221 para. 1 and 2), wil­fully caus­ing an ex­plo­sion (Art. 223 para. 1 no 1), mis­use of ex­plos­ives and tox­ic gases with crim­in­al in­tent (Art. 224 para. 1), wil­fully caus­ing danger without crim­in­al in­tent (Art. 225 para. 1), man­u­fac­ture, con­ceal­ment and trans­port of ex­plos­ives and tox­ic gases (Art. 226), caus­ing danger by means of nuc­le­ar en­ergy, ra­dio­activ­ity and ion­ising ra­di­ation (Art. 226^bis), pre­par­at­ory of­fences (Art. 226^ter), wil­fully caus­ing a flood or col­lapse (Art. 227 para. 1 no 1), crim­in­al dam­age to elec­tric­al in­stall­a­tions, and hy­draul­ic or pro­tect­ive struc­tures (Art. 228 no 1 para. 1), breach of con­struc­tion reg­u­la­tions (Art. 229 para. 1), re­mov­al or non-in­stall­a­tion of safety devices (Art. 230 Ziff. 1);

j.⁷⁹

wil­fully caus­ing danger by means of ge­net­ic­ally mod­i­fied or patho­gen­ic or­gan­isms (Art. 230^bis para. 1), trans­mis­sion of hu­man dis­eases (Art. 231), wil­ful con­tam­in­a­tion of drink­ing wa­ter (Art. 234 para. 1);

k.⁸⁰

dis­rup­tion of pub­lic traffic (Art. 237 no 1);

l.⁸¹

acts pre­par­at­ory to the com­mis­sion of an of­fence (Art. 260^bis para. 1 and 3), par­ti­cip­a­tion in or sup­port for a crim­in­al or ter­ror­ist or­gan­isa­tion (Art. 260^ter), en­dan­ger­ing pub­lic safety with weapons (Art. 260^quater), fin­an­cing ter­ror­ism (Art. 260^quin­quies) or re­cruit­ing, train­ing and trav­el­ling with a view to com­mit­ting a ter­ror­ist of­fence (Art. 260^sex­ies);

m.^.

gen­o­cide (Art. 264), felon­ies against hu­man­ity (Art. 264a), ser­i­ous vi­ol­a­tions of the Geneva Con­ven­tions of 12 Au­gust 1949⁸² (Art. 264c), oth­er war crimes (Art. 264d–264h);

n.

wil­ful vi­ol­a­tions of Art­icle 116 para­graph 3 or Art­icle 118 para­graph 3 of the For­eign Na­tion­als Act of 16 Decem­ber 2005⁸³;

o.

vi­ol­a­tion of Art­icle 19 para­graph 2 or 20 para­graph 2 of the Nar­cot­ics Act of 3 Oc­to­ber 1951⁸⁴ (NarcA);

p.⁸⁵

vi­ol­a­tion of Art­icle 74 para­graph 4 of the In­tel­li­gence Ser­vice Act of 25 Septem­ber 2015⁸⁶ (In­telSA).

² The court may by way of ex­cep­tion re­frain from or­der­ing ex­pul­sion if it would cause ser­i­ous per­son­al hard­ship to the for­eign na­tion­al con­cerned and the pub­lic in­terest in ex­pul­sion does not out­weigh the private in­terest of the for­eign na­tion­al in re­main­ing in Switzer­land. In such cases, ac­count must be taken of the spe­cial po­s­i­tion of for­eign na­tion­als who were born or have grown up in Switzer­land.

³ The court may also re­frain from or­der­ing ex­pul­sion if the of­fence was com­mit­ted in jus­ti­fi­able self-de­fence (Art. 16 para. 1) or in a jus­ti­fi­able situ­ation of ne­ces­sity (Art. 18 para. 1).

The court may ex­pel a for­eign na­tion­al from Switzer­land for 3–15 years if he is con­victed and sen­tenced or made sub­ject to a meas­ure un­der Art­icles 59–61 or 64 for a felony or mis­de­mean­our that is not lis­ted in Art­icle 66a.

¹ Any per­son who has been made sub­ject to an ex­pul­sion or­der who com­mits a fur­ther of­fence that meets the re­quire­ments for ex­pul­sion un­der Art­icle 66a shall be ex­pelled again for 20 years.

² Lifelong ex­pul­sion may be ordered if the of­fend­er com­mits the new of­fence while the pre­vi­ous ex­pul­sion or­der is still in ef­fect.

¹ The ex­pul­sion or­der ap­plies from the date on which the judg­ment be­comes leg­ally en­force­able.

² Be­fore en­for­cing the ex­pul­sion or­der, any un­sus­pen­ded sen­tences or parts there­of and any cus­todi­al meas­ures must be ex­ecuted.

³ The ex­pul­sion or­der is en­forced as soon as the of­fend­er is con­di­tion­ally or fi­nally re­leased from the ex­e­cu­tion of crim­in­al pen­al­ties or meas­ures or the cus­todi­al meas­ure is re­voked, provided that the re­mainder of sen­tence need not be ex­ecuted and no oth­er such meas­ure has been ordered.

⁴ If a per­son sub­ject to an ex­pul­sion or­der is trans­ferred to his home coun­try for the ex­e­cu­tion of crim­in­al pen­al­ties or meas­ures, the ex­pul­sion or­der ap­plies on such trans­fer.

⁵ The dur­a­tion of ex­pul­sion is cal­cu­lated from the day on which the of­fend­er leaves Switzer­land.

¹ The en­force­ment of a man­dat­ory ex­pul­sion or­der un­der Art­icle 66a may only be de­ferred if:⁹¹

a.

the per­son con­cerned is re­cog­nised by Switzer­land as a refugee and, if ex­pelled, his life or his free­dom would be en­dangered due to his race, re­li­gion, na­tion­al­ity, af­fil­i­ation to a spe­cif­ic so­cial group or his polit­ic­al views; the fore­go­ing does not ap­ply to a refugee who may not in­voke the ban on re­foule­ment un­der Art­icle 5 para­graph 2 of the Asylum Act of 26 June 1998⁹²;

b.

ex­pul­sion would vi­ol­ate oth­er man­dat­ory pro­vi­sions of in­ter­na­tion­al law.

² In reach­ing its de­cision, the com­pet­ent can­ton­al au­thor­ity must as­sume that ex­pul­sion to a state deemed safe by the Fed­er­al Coun­cil in ac­cord­ance with Art­icle 6a para­graph 2 of the Asylum Act of 26 June 1998 does not vi­ol­ate Art­icle 25 para­graphs 2 and 3 of the Fed­er­al Con­sti­tu­tion.

¹ If a per­son has com­mit­ted a felony or mis­de­mean­our while car­ry­ing on a pro­fes­sion­al activ­ity or an or­gan­ised non-pro­fes­sion­al activ­ity, and has as a res­ult re­ceived a cus­todi­al sen­tence in ex­cess of six months, and if there is a risk that he will ab­use his activ­ity in or­der to com­mit a fur­ther felony or mis­de­mean­our, the court may pro­hib­it him totally or par­tially from car­ry­ing on this activ­ity or com­par­able activ­it­ies for a peri­od of six months to five years.⁹⁴

² If a per­son has com­mit­ted a felony or mis­de­mean­our against a minor or an­oth­er es­pe­cially vul­ner­able per­son and if there is a risk that in car­ry­ing on a pro­fes­sion­al activ­ity or an or­gan­ised non-pro­fes­sion­al activ­ity that in­volves reg­u­lar con­tact with any minors or with oth­er es­pe­cially vul­ner­able per­sons he will com­mit fur­ther of­fences of this nature, the court may pro­hib­it him from car­ry­ing on the activ­ity con­cerned for one to ten years.

^2bis The court may im­pose a lifelong pro­hib­i­tion or­der un­der para­graph 2 if is an­ti­cip­ated that the of­fend­er will still rep­res­ent a danger after the peri­od of ten years.At the re­quest of the ex­ec­ut­ive au­thor­ity, it may ex­tend a pro­hib­i­tion or­der that is lim­ited in time in terms of para­graph 2 by a max­im­um of five years on any one oc­ca­sion if this is deemed ne­ces­sary to pre­vent the of­fend­er from com­mit­ting fur­ther felon­ies and mis­de­mean­ours of the type that led to the pro­hib­i­tion or­der.⁹⁵

³ If a per­son re­ceives a sen­tence or is made sub­ject to a meas­ure un­der Art­icles 59–61, 63 or 64 for any of the fol­low­ing of­fences, the court shall pro­hib­it him for the rest of his life from car­ry­ing on any pro­fes­sion­al activ­ity or or­gan­ised non-pro­fes­sion­al activ­ity that in­volves reg­u­lar con­tact with any minors:

a.

traf­fick­ing in hu­man be­ings (Art. 182) where the of­fence was com­mit­ted for the pur­pose of the sexu­al ex­ploit­a­tion of a minor;

b.

sexu­al acts with chil­dren (Art. 187), sexu­al acts with de­pend­ent per­sons (Art. 188) or sexu­al acts with minors against pay­ment (Art. 196);

c.⁹⁶

sexu­al ab­use and in­de­cent as­sault (Art. 189), rape (Art. 190), ab­use of a per­son in­cap­able of prop­er judge­ment or res­ist­ance (Art. 191), ex­ploit­a­tion of a per­son in a po­s­i­tion of need or de­pend­ency (Art. 193), de­cep­tion as to the sexu­al char­ac­ter of an act (Art. 193a), in­de­cent con­duct (Art. 194), en­cour­aging pros­ti­tu­tion (Art. 195), un­au­thor­ised passing on of private sexu­al con­tent (Art. 197a) or sexu­al har­ass­ment (Art. 198), where the of­fence is com­mit­ted against or in front of a minor;

d.

por­no­graphy (Art. 197):

1.

un­der Art­icle 197 para­graph 1 or 3,

2.

un­der Art­icle 197 para­graph 4 or 5, where the con­tent of the items or re­cord­ings in­volved sexu­al acts with minors.⁹⁷

⁴ If a per­son re­ceives a sen­tence or is made sub­ject to a meas­ure un­der Art­icles 59–61, 63 or 64 for any of the fol­low­ing of­fences, the court shall pro­hib­it him from car­ry­ing on any pro­fes­sion­al activ­ity or or­gan­ised non-pro­fes­sion­al activ­ity that in­volves reg­u­lar con­tact with es­pe­cially vul­ner­able adult per­sons, as well as any pro­fes­sion­al activ­ity or or­gan­ised non-pro­fes­sion­al activ­ity in the health sec­tor that in­volves dir­ect con­tact with pa­tients:

a.

traf­fick­ing in hu­man be­ings (Art. 182) where the of­fence was com­mit­ted for the pur­pose of the sexu­al ex­ploit­a­tion, sexu­al ab­use and in­de­cent as­sault (Art. 189), rape (Art. 190), sexu­al acts with per­sons in­cap­able of prop­er judge­ment or res­ist­ance (Art. 191), ex­ploit­a­tion of a per­son in a po­s­i­tion of need or de­pend­ency (Art. 193), de­cep­tion as to the sexu­al char­ac­ter of an act (Art. 193a), in­de­cent con­duct (Art. 194), en­cour­aging pros­ti­tu­tion (Art. 195), un­au­thor­ised passing on of private sexu­al con­tent (Art. 197a) or sexu­al har­ass­ment (Art. 198), where the of­fence is com­mit­ted against or in front of:⁹⁸

1.

an es­pe­cially vul­ner­able adult vic­tim, or

2.

an adult vic­tim who is not es­pe­cially vul­ner­able, but who was in­cap­able of res­ist­ance or of judge­ment or who was un­able to de­fend him- or her­self as a res­ult of phys­ic­al or psy­cho­lo­gic­al de­pend­ence;

b.

por­no­graphy (Art. 197 para. 2 first sen­tence and para. 4 or 5), where the items or re­cord­ings had the fol­low­ing con­tent:

1.

sexu­al acts with es­pe­cially vul­ner­able adult vic­tims, or

2.

sexu­al acts with adult vic­tims who are not es­pe­cially vul­ner­able, but who were in­cap­able of res­ist­ance or of judge­ment or who were un­able to de­fend them­selves as a res­ult of phys­ic­al or psy­cho­lo­gic­al de­pend­ence.⁹⁹

^4bis By way of ex­cep­tion, the court may choose not to im­pose a pro­hib­i­tion or­der un­der para­graph 3 or 4 in par­tic­u­larly minor cases if a pro­hib­i­tion or­der of this type does not ap­pear ne­ces­sary to pre­vent the of­fend­er from com­mit­ting fur­ther of­fences of the same type. A pro­hib­i­tion or­der is however man­dat­ory if the of­fend­er:

a.¹⁰⁰

has been con­victed of traf­fick­ing in hu­man be­ings (Art. 182), in­de­cent as­sault (Art. 189 paras 2 and 3), rape (Art. 190 paras 2 and 3), sexu­al acts with per­sons in­cap­able of prop­er judge­ment or res­ist­ance (Art. 191) or en­cour­aging pros­ti­tu­tion (Art. 195); or

b.

is a pae­do­phile in ac­cord­ance with the in­ter­na­tion­ally re­cog­nised clas­si­fic­a­tion cri­ter­ia.¹⁰¹

⁵ If the of­fend­er re­ceives a sen­tence or is made sub­ject to a meas­ure for two or more of­fences in the same pro­ceed­ings, the court shall spe­cify what por­tion of the sen­tence or which meas­ure ap­plies to an of­fence that en­tails an activ­ity pro­hib­i­tion or­der. This por­tion of the sen­tence, the meas­ure and the of­fence are de­cis­ive in de­term­in­ing wheth­er an activ­ity pro­hib­i­tion or­der un­der para­graph 1, 2, 2^bis, 3 or 4 is im­posed. The sen­tence por­tions for two or more rel­ev­ant of­fences are ad­ded to­geth­er. More than one activ­ity pro­hib­i­tion or­der may be im­posed.¹⁰²

⁶ The court may or­der pro­ba­tion as­sist­ance for the dur­a­tion of the pro­hib­i­tion or­ders.¹⁰³

⁷ ...¹⁰⁴

¹ Pro­fes­sion­al activ­it­ies with­in the mean­ing of Art­icle 67 are activ­it­ies in ex­er­cise of a prin­cip­al or sec­ond­ary pro­fes­sion or trade or of a com­mer­cial en­ter­prise. Or­gan­ised non-pro­fes­sion­al activ­it­ies are activ­it­ies that are not or not primar­ily car­ried on for pe­cu­ni­ary gain and which are car­ried on in the con­text of an as­so­ci­ation or oth­er or­gan­isa­tion.

² The pro­hib­i­tion from car­ry­ing on an activ­ity un­der Art­icle 67 in­cludes activ­it­ies that the of­fend­er car­ries on on a self-em­ployed basis, as a gov­ern­ing of­ficer of a leg­al en­tity or com­mer­cial en­ter­prise or in an­oth­er ca­pa­city that must be re­cor­ded in the com­mer­cial re­gister, or as the agent or rep­res­ent­at­ive of an­oth­er per­son or which he ar­ranges to be car­ried on by a per­son de­pend­ent on his in­struc­tions.¹⁰⁶

³ If there is a risk that the of­fend­er will also mis­use his activ­ity in or­der to com­mit of­fences if he is sub­ject to the or­ders and con­trol of a su­per­i­or or su­per­visor, he shall be totally pro­hib­ited from car­ry­ing on the activ­ity.

⁴ Pro­hib­i­tion or­ders un­der Art­icle 67 para­graphs 3 and 4 al­ways ap­ply to the en­tire activ­ity.

⁵ The fol­low­ing are deemed to be activ­it­ies with reg­u­lar con­tact with minors or with oth­er es­pe­cially vul­ner­able per­sons:

a.

activ­it­ies that dir­ectly and spe­cific­ally in­volve minors or oth­er es­pe­cially vul­ner­able per­sons, and in par­tic­u­lar:

1.

teach­ing or train­ing,

2.

par­ent­ing or coun­selling,

3.

care or su­per­vi­sion,

4.

nurs­ing,

5.

phys­ic­al ex­am­in­a­tion or treat­ment,

6.

psy­cho­lo­gic­al ex­am­in­a­tion or treat­ment,

7.

pre­par­ing and serving meals,

8.

trans­port,

9.

the dir­ect sale or loan of ob­jects in­ten­ded spe­cific­ally for minors or oth­er par­tic­u­larly vul­ner­able per­sons, and act­ing as a dir­ect in­ter­me­di­ary in such sales or loans, where this is the main activ­ity of the per­son con­cerned;

b.

oth­er activ­it­ies that are primar­ily or re­peatedly car­ried on in in­sti­tu­tions that of­fer the ser­vices lis­ted un­der let­ter a, with the ex­cep­tion of activ­it­ies where it is en­sured at the loc­a­tion or time con­cerned that no con­tact with minors or oth­er es­pe­cially vul­ner­able per­sons can take place.¹⁰⁷

⁶ Es­pe­cially vul­ner­able per­sons are per­sons who be­cause of their age, an ill­ness or long-term phys­ic­al, men­tal or psy­cho­lo­gic­al impair­ment are de­pend­ent on help from oth­ers in their daily activ­it­ies or way of liv­ing.¹⁰⁸

¹ If a per­son has com­mit­ted a felony or mis­de­mean­our against one or more spe­cif­ic per­sons or against per­sons in a spe­cif­ic group, and if there is a risk that he will com­mit fur­ther felon­ies or mis­de­mean­ours in the event of hav­ing con­tact with such per­sons, the court may im­pose a con­tact pro­hib­i­tion and ex­clu­sion or­der of up to five years.

² By means of a con­tact pro­hib­i­tion and ex­clu­sion or­der the court may pro­hib­it the of­fend­er from:

a.

con­tact­ing one or more spe­cif­ic per­sons or per­sons in a spe­cif­ic group dir­ectly or via third parties, in par­tic­u­lar by tele­phone, in writ­ing or on­line, or em­ploy­ing, ac­com­mod­at­ing, edu­cat­ing, caring for such per­sons or as­so­ci­at­ing with such per­sons in any oth­er way;

b.

ap­proach­ing a spe­cif­ic per­son or com­ing with­in a spe­cif­ic dis­tance of that per­son’s home;

c.

be­ing present in spe­cif­ic loc­a­tions, in par­tic­u­lar spe­cif­ic streets, areas or dis­tricts.

³ The com­pet­ent au­thor­ity may use tech­nic­al devices that are se­curely at­tached to the of­fend­er in or­der to en­force the pro­hib­i­tion or­der. These devices may in par­tic­u­lar serve to de­term­ine the of­fend­er’s loc­a­tion.

⁴ The court may or­der pro­ba­tion as­sist­ance for the dur­a­tion of the pro­hib­i­tion or­der.

⁵ On ap­plic­a­tion from the ex­ec­ut­ive au­thor­ity, it may ex­tend lim­ited pro­hib­i­tion or­ders by a max­im­um of five years in each case if this is ne­ces­sary to pre­vent the of­fend­er from com­mit­ting fur­ther felon­ies and mis­de­mean­ours against minors or oth­er es­pe­cially vul­ner­able per­sons.

¹ A pro­hib­i­tion or­der comes in­to ef­fect on the day on which the judg­ment takes full leg­al ef­fect.

² The dur­a­tion of a cus­todi­al sen­tence or of a cus­todi­al meas­ure (Art. 59–61 and 64) is not taken in­to ac­count in de­term­in­ing the term of the pro­hib­i­tion or­der.

³ If the of­fend­er fails to com­plete the pro­ba­tion­ary peri­od suc­cess­fully and if the sus­pen­ded cus­todi­al sen­tence is ex­ecuted or a re­call to cus­tody is ordered in re­spect of a sen­tence or meas­ure, the term of the pro­hib­i­tion or­der is cal­cu­lated from the day on which the of­fend­er is re­leased on pa­role or gran­ted fi­nal re­lease or on which the sanc­tion is re­voked or re­mit­ted.

⁴ If the of­fend­er com­pletes the pro­ba­tion­ary peri­od suc­cess­fully, the com­pet­ent au­thor­ity shall de­cide on any modi­fic­a­tion of the con­di­tions or term of the pro­hib­i­tion or­der un­der Art­icle 67 para­graph 1 or Art­icle 67b, or on wheth­er the pro­hib­i­tion or­der should be re­voked.

⁵ The of­fend­er may ap­ply to the com­pet­ent au­thor­ity for a modi­fic­a­tion of the con­di­tions or term of the pro­hib­i­tion or­der, or to have the pro­hib­i­tion or­der re­voked:

a.

in the case of a pro­hib­i­tion or­der un­der Art­icle 67 para­graph 1 or un­der Art­icle 67b: after the or­der has been in force for two years;

b.

in the case of a lim­ited pro­hib­i­tion or­der un­der Art­icle 67 para­graph 2: after half of the term of the pro­hib­i­tion or­der, provided the or­der has been in force for at least three years;

c.¹¹¹

...

d.¹¹²

in the case of a lifelong pro­hib­i­tion or­der un­der Art­icle 67 para­graph 2^bis: after the or­der has been in force for ten years.

⁶ If it is con­sidered un­likely that the of­fend­er will com­mit any fur­ther felon­ies or mis­de­mean­ours by mis­us­ing an activ­ity or by hav­ing con­tact with spe­cif­ic per­sons of a spe­cif­ic group to and the of­fend­er has provided reas­on­able com­pens­a­tion for the loss, dam­age or in­jury caused, the com­pet­ent au­thor­ity shall re­voke the pro­hib­i­tion or­der in cases fall­ing un­der para­graph 4 or 5.

^6bis Pro­hib­i­tion or­ders un­der Art­icle 67 para­graphs 3 or 4 may not re­voked.¹¹³

⁷ If the of­fend­er breaches an activ­ity pro­hib­i­tion or­der or a con­tact pro­hib­i­tion and ex­clu­sion or­der or if he fails to com­ply with the as­so­ci­ated pro­ba­tion as­sist­ance, or if such as­sist­ance can­not be provided or is no longer re­quired, the com­pet­ent au­thor­ity shall sub­mit a re­port to the court or the ex­ec­ut­ive au­thor­ity. The court or the ex­ec­ut­ive au­thor­ity may re­voke or make a new or­der for pro­ba­tion as­sist­ance.

^7bis The ex­ec­ut­ive au­thor­ity may or­der pro­ba­tion as­sist­ance for the en­tire dur­a­tion of the pro­hib­i­tion from car­ry­ing on an activ­ity or the con­tact and ex­clu­sion or­der.¹¹⁴

⁸ If the of­fend­er fails to com­ply with the pro­ba­tion as­sist­ance dur­ing a pro­ba­tion­ary peri­od, Art­icle 95 para­graphs 4 and 5 ap­ply.

⁹ If the of­fend­er breaches an activ­ity pro­hib­i­tion or­der or a con­tact pro­hib­i­tion and ex­clu­sion or­der dur­ing a pro­ba­tion­ary peri­od, Art­icle 294 and the pro­vi­sions on re­vok­ing a sus­pen­ded sen­tence or the sus­pen­ded part of a sen­tence and on a re­call to cus­tody in re­spect of a sen­tence or meas­ure ap­ply.

¹ If it be­comes ap­par­ent dur­ing the term of an activ­ity pro­hib­i­tion or­der or a con­tact pro­hib­i­tion and ex­clu­sion or­der that in the of­fend­er’s case an ex­ten­sion of the pro­hib­i­tion or­der or an ad­di­tion­al such pro­hib­i­tion or­der is re­quired, the court may on ap­plic­a­tion from the ex­ec­ut­ive au­thor­ity ex­tend the pro­hib­i­tion or­der or im­pose an ad­di­tion­al pro­hib­i­tion or­der.

² If it be­comes ap­par­ent dur­ing a cus­todi­al sen­tence or a cus­todi­al meas­ure that in the of­fend­er’s case a pro­hib­i­tion or­der un­der Art­icle 67 para­graph 1 or 2 or un­der Art­icle 67b is re­quired, the court may im­pose this pro­hib­i­tion or­der on ap­plic­a­tion from the ex­ec­ut­ive au­thor­ity.

If the of­fend­er has used a mo­tor vehicle in or­der to com­mit a felony or mis­de­mean­our and where there is a risk of re-of­fend­ing, the court, in ad­di­tion to im­pos­ing a sen­tence or meas­ure un­der Art­icles 59–64, may or­der that the of­fend­er for­feit his pro­vi­sion­al or full driv­ing li­cence for a peri­od of between one month and five years.

¹ If pub­lic­a­tion of a crim­in­al judg­ment is re­quired in the pub­lic in­terest, or in the in­terests of the per­son harmed or of the com­plain­ant, the court shall or­der pub­lic­a­tion at the ex­pense of the of­fend­er.

² If pub­lic­a­tion of an ac­quit­tal or of a rul­ing of the pro­sec­u­tion ser­vice abandon­ing pro­ceed­ings is re­quired in the pub­lic in­terest, or in the in­terests of the ac­quit­ted per­son or former sus­pect, the court shall or­der pub­lic­a­tion at State ex­pense or at the ex­pense of the com­plain­ant.

³ Pub­lic­a­tion is made in the in­terests of the per­son harmed, com­plain­ant, ac­quit­ted per­son or former sus­pect only if such per­sons so re­quest.

⁴ The court de­cides on the form and ex­tent of pub­lic­a­tion.

¹ The court shall, ir­re­spect­ive of the crim­in­al li­ab­il­ity of any per­son, or­der the for­feit­ure of ob­jects that have been used or were in­ten­ded to be used for the com­mis­sion of an of­fence or that have been pro­duced as a res­ult of the com­mis­sion of an of­fence in the event that such ob­jects con­sti­tute a fu­ture danger to pub­lic safety, mor­als or pub­lic or­der.

² The court may or­der that the ob­jects for­feited be rendered un­us­able or be des­troyed.

¹ The court shall or­der the for­feit­ure of as­sets that have been ac­quired through the com­mis­sion of an of­fence or that are in­ten­ded to be used in the com­mis­sion of an of­fence or as pay­ment there­for, un­less the as­sets are passed on to the per­son harmed for the pur­pose of restor­ing the pri­or law­ful po­s­i­tion.

² For­feit­ure is not per­mit­ted if a third party has ac­quired the as­sets in ig­nor­ance of the grounds for for­feit­ure, provided he has paid a con­sid­er­a­tion of equal value there­for or for­feit­ure would cause him to en­dure dis­pro­por­tion­ate hard­ship.

³ The right to or­der for­feit­ure is lim­ited to sev­en years; if, however, the pro­sec­u­tion of the of­fence is sub­ject to a longer lim­it­a­tion peri­od, this peri­od also ap­plies to the right to or­der for­feit­ure.

⁴ Of­fi­cial no­tice must be giv­en of for­feit­ure. The rights of per­sons harmed or third parties ex­pire five years after the date on which of­fi­cial no­tice is giv­en.

⁵ If the amount of the as­sets to be for­feited can­not be as­cer­tained, or may be as­cer­tained only by in­cur­ring a dis­pro­por­tion­ate level of trouble and ex­pense, the court may make an es­tim­ate.

¹ If the as­sets sub­ject to for­feit­ure are no longer avail­able, the court may up­hold a claim for com­pens­a­tion by the State in re­spect of a sum of equi­val­ent value, which claim may be en­forced against a third party only if he is not ex­cluded by Art­icle 70 para­graph 2.

² The court may dis­miss an equi­val­ent claim in its en­tirety or in part if the claim is likely to be un­re­cov­er­able or if the claim would ser­i­ously hinder the re­hab­il­it­a­tion of the per­son con­cerned.

³ …¹¹⁸

The court shall or­der the for­feit­ure of all as­sets that are sub­ject to the power of dis­pos­al of a crim­in­al or ter­ror­ist or­gan­isa­tion. In the case of the as­sets of a per­son who par­ti­cip­ates in or sup­ports such an or­gan­isa­tion (Art. 260^ter), it is pre­sumed that the as­sets are sub­ject to the power of dis­pos­al of the or­gan­isa­tion un­til the con­trary is proven.

¹ If as a res­ult of a felony or mis­de­mean­our a per­son has suffered harm and is not en­titled to be­ne­fits un­der an in­sur­ance policy, and if it is an­ti­cip­ated that the of­fend­er will not pay dam­ages or sat­is­fac­tion, the court shall award the per­son harmed, at his re­quest, a sum of money up to the amount of dam­ages or sat­is­fac­tion set by a court or agreed in a set­tle­ment with the per­son harmed and ob­tained from:

a.

the mon­et­ary pen­alty or fine paid by the of­fend­er;

b.

ob­jects and as­sets that have been for­feited, or the pro­ceeds of their sale after de­duc­tion of ex­penses;

c.

com­pens­at­ory claims;

d.

the amount of the good be­ha­viour bond.

² The court may or­der such an award only if the per­son harmed as­signs the cor­res­pond­ing ele­ment of his claim to the State.

³ The can­tons shall provide a simple and quick pro­ced­ure for cases where their courts are not en­titled to make an award of this nature in a crim­in­al judg­ment.

The hu­man dig­nity of the pris­on in­mates or of the in­mates of an in­sti­tu­tion for the ex­e­cu­tion of meas­ures must be re­spec­ted. Their rights may only be lim­ited to the ex­tent that that is re­quired for the depriva­tion of their liberty and their co-ex­ist­ence in the pen­al in­sti­tu­tion.

¹ The ex­e­cu­tion of sen­tences must en­cour­age an im­prove­ment in the so­cial be­ha­viour of the pris­on in­mates, and in par­tic­u­lar their abil­ity to live their lives without of­fend­ing again. The con­di­tions un­der which sen­tences are ex­ecuted must cor­res­pond as far as pos­sible with those of nor­mal life, guar­an­tee the su­per­vi­sion of the pris­on in­mates, coun­ter­act the harm­ful con­sequences of the depriva­tion of liberty and take ap­pro­pri­ate ac­count of the need to pro­tect the gen­er­al pub­lic, the in­sti­tu­tion staff and oth­er in­mates.

² ...¹²⁰

³ The in­sti­tu­tion rules shall provide that a sen­tence man­age­ment plan be drawn up in con­sulta­tion with the pris­on in­mate. This plan in par­tic­u­lar con­tains de­tails of the su­per­vi­sion offered, the op­por­tun­it­ies to work and re­ceive ba­sic or ad­vanced train­ing, mak­ing re­par­a­tion, re­la­tions with the out­side world and pre­par­a­tions for re­lease.

⁴ The pris­on in­mate must act­ively co­oper­ate in reso­cial­isa­tion ef­forts and the pre­par­a­tions for re­lease.

⁵ Ac­count is taken of the gender-spe­cif­ic con­cerns and needs of the pris­on in­mates.

⁶ If the pris­on in­mate is re­leased on pa­role or gran­ted fi­nal re­lease and it sub­sequently comes to light that on his re­lease he was sub­ject to an­oth­er ex­ecut­able judg­ment im­pos­ing a cus­todi­al sen­tence, ex­e­cu­tion of that cus­todi­al sen­tence is waived if:

a.

it was not ex­ecuted con­cur­rently with the oth­er cus­todi­al sen­tence for a reas­on with­in the con­trol of the ex­ec­ut­ive au­thor­it­ies;

b.

the pris­on in­mate was able to as­sume in good faith that on his re­lease he was not sub­ject to an­oth­er ex­ecut­able judg­ment im­pos­ing a cus­todi­al sen­tence; and

c.

the re­in­teg­ra­tion of the pris­on in­mates would be pre­ju­diced.

¹ The Com­mis­sion un­der Art­icle 62d para­graph 2 shall with a view to a trans­fer to an open pen­al in­sti­tu­tion and the au­thor­isa­tion of a re­lax­a­tion in the ex­e­cu­tion of the sen­tence as­sess the danger to the com­munity of the of­fend­er if:

a.

he has com­mit­ted a felony in terms of Art­icle 64 para­graph 1; and

b.

the ex­ec­ut­ive au­thor­ity can­not sat­is­fact­or­ily an­swer the ques­tion of wheth­er he is a danger to oth­er pris­on in­mates.

² Re­lax­a­tion of the ex­e­cu­tion of the sen­tence in­volves eas­ing the re­gime for the depriva­tion of liberty, in par­tic­u­lar by means of a trans­fer to an open in­sti­tu­tion, the grant­ing of re­lease on tem­por­ary li­cence, the au­thor­isa­tion of day re­lease em­ploy­ment or of ex­tern­al ac­com­mod­a­tion and the grant­ing of pa­role.

³ Danger to the com­munity is as­sumed if there is a risk that the pris­on in­mate will ab­scond and com­mit a fur­ther of­fence that severely pre­ju­dices the phys­ic­al, psy­cho­lo­gic­al or sexu­al in­teg­rity of an­oth­er per­son.

¹ Cus­todi­al sen­tences are ex­ecuted in a se­cure or open pen­al in­sti­tu­tion.

² The pris­on in­mate shall be ad­mit­ted to a se­cure pen­al in­sti­tu­tion or to the se­cure sec­tion of an open pen­al in­sti­tu­tion if there is a risk that that he will ab­scond or it is ex­pec­ted that he will com­mit fur­ther of­fences.

The pris­on in­mate nor­mally spends his work­ing, rest and leis­ure time in the in­sti­tu­tion.

¹ The cus­todi­al sen­tence is ex­ecuted in the form of day re­lease em­ploy­ment if the pris­on in­mate has served part of the cus­todi­al sen­tence, nor­mally a min­im­um one half, and it is not ex­pec­ted that he will ab­scond or com­mit fur­ther of­fences.

² In day re­lease em­ploy­ment, the pris­on in­mate works out­side the in­sti­tu­tion and spends his rest and leis­ure time in the in­sti­tu­tion. The change to day re­lease em­ploy­ment nor­mally takes place fol­low­ing an ap­pro­pri­ate peri­od spent in an open in­sti­tu­tion or the open sec­tion of a se­cure in­sti­tu­tion. Work out­side the in­sti­tu­tion may also in­clude house­work and caring for chil­dren.

³ If the pris­on in­mate proves him­self to be of good be­ha­viour in day re­lease em­ploy­ment, the fur­ther ex­e­cu­tion of the sen­tence takes the form of ex­tern­al ac­com­mod­a­tion and day re­lease em­ploy­ment. Here the pris­on in­mate lives and works out­side the in­sti­tu­tion, but re­mains un­der the su­per­vi­sion of the ex­ec­ut­ive au­thor­ity.

¹ At the of­fend­er’s re­quest, a cus­todi­al sen­tence of no more than 12 months or the re­mainder of a sen­tence after tak­ing ac­count of time spent on re­mand of no more than six months may be served in the form of semi-de­ten­tion provided:

a.

it is not an­ti­cip­ated that the of­fend­er will ab­scond or com­mit fur­ther of­fences; and

b.

the of­fend­er does reg­u­lated work or train­ing or is sim­il­arly oc­cu­pied for at least 20 hours a week.

² The pris­on in­mate works, is trained or sim­il­arly oc­cu­pied out­side the in­sti­tu­tion and spends his rest and leis­ure time in the in­sti­tu­tion.

³ Semi-de­ten­tion may be served in a spe­cial sec­tion of a re­mand centre provided the of­fend­er is guar­an­teed the re­quired su­per­vi­sion.

⁴ If the of­fend­er no longer meets the au­thor­isa­tion re­quire­ments or if he fails to com­ply with the con­di­tions of semi-de­ten­tion im­posed by the ex­ec­ut­ive au­thor­ity des­pite be­ing warned to do so, the cus­todi­al sen­tence shall be served in the nor­mal man­ner.

Sol­it­ary con­fine­ment in the form of un­in­ter­rup­ted sep­ar­a­tion from oth­er pris­on in­mates may only be ordered:

a.

for a max­im­um of one week at the start of the sen­tence in or­der to ini­ti­ate the ex­e­cu­tion of the sen­tence;

b.

for the pro­tec­tion of the pris­on in­mate or of third parties;

c.

as a dis­cip­lin­ary sanc­tion;

d.¹²³

to pre­vent oth­er pris­on in­mates from be­ing in­flu­enced by ideas that may en­cour­age them to carry out ter­ror­ist activ­it­ies, provided there is spe­cif­ic evid­ence of such an in­flu­ence.

¹ If it is not an­ti­cip­ated that the of­fend­er will ab­scond or com­mit fur­ther of­fences, the fol­low­ing sen­tences may be served in the form of com­munity ser­vice:

a.

a cus­todi­al sen­tence of no more than six months;

b.

the re­mainder of a sen­tence of no more than six months after tak­ing ac­count of time spent on re­mand; or

c.

a mon­et­ary pen­alty or a fine.

² Com­munity ser­vice is not per­mit­ted as a means of serving an al­tern­at­ive cus­todi­al sen­tence.

³ Com­munity ser­vice is work that be­ne­fits so­cial in­sti­tu­tions, pub­lic works or per­sons in need. The work is un­paid.

⁴ Four hours of com­munity ser­vice cor­res­pond to one day of a cus­todi­al sen­tence, one daily pen­alty unit of a mon­et­ary pen­alty or one day of an al­tern­at­ive cus­todi­al sen­tence in the case of con­tra­ven­tions.

⁵ The ex­ec­ut­ive au­thor­ity shall al­low the of­fend­er a spe­cif­ic peri­od not ex­ceed­ing two years with­in which to com­plete the com­munity ser­vice. In the case of com­munity ser­vice car­ried out in lieu of a fine, this peri­od may not ex­ceed one year.

⁶ If the of­fend­er fails to com­ply with the con­di­tions of com­munity ser­vice im­posed by the ex­ec­ut­ive au­thor­ity des­pite be­ing warned to do so, the cus­todi­al sen­tence shall be served in the nor­mal man­ner or in the form of semi-de­ten­tion, or the mon­et­ary pen­alty or fine shall be en­forced.

¹ At the re­quest of the of­fend­er, the ex­ec­ut­ive au­thor­ity may or­der the use of elec­tron­ic devices and their se­cure at­tach­ment to the of­fend­er’s body (elec­tron­ic mon­it­or­ing):

a.

in ex­e­cu­tion of a cus­todi­al sen­tence or an al­tern­at­ive cus­todi­al sen­tence of from 20 days to 12 months; or

b.

in lieu of day re­lease em­ploy­ment or day re­lease em­ploy­ment and ex­tern­al ac­com­mod­a­tion for a term of from 3 to 12 months.

² The ex­ec­ut­ive au­thor­ity may or­der elec­tron­ic mon­it­or­ing only if:

a.

it is not an­ti­cip­ated that the of­fend­er will ab­scond or com­mit fur­ther of­fences;

b.

the of­fend­er lives in per­man­ent ac­com­mod­a­tion;

c.

the of­fend­er is do­ing reg­u­lated work or train­ing or is sim­il­arly oc­cu­pied for at least 20 hours a week or can be as­signed to do the same;

d.

the adults liv­ing with the of­fend­er in the same ac­com­mod­a­tion con­sent; and

e.

the of­fend­er agrees to the im­ple­ment­a­tion plan drawn up for him.

³ If the re­quire­ments of para­graph 2 let­ter a, b or c are no longer met or if the of­fend­er fails to ful­fil the ob­lig­a­tions set out in the im­ple­ment­a­tion plan, the ex­ec­ut­ive au­thor­ity may dis­con­tin­ue the elec­tron­ic mon­it­or­ing and or­der the sen­tence to be served in the nor­mal man­ner or in the form of semi-de­ten­tion, or re­strict the free time avail­able to the of­fend­er.

¹ A de­par­ture from the rules gov­ern­ing the ex­e­cu­tion of sen­tences in fa­vour of the pris­on in­mates may be per­mit­ted:

a.

if the state of health of the pris­on in­mates so re­quires;

b.

in the event of preg­nancy, child­birth and for the time im­me­di­ately after child­birth;

c.

to en­able the moth­er and in­fant to be ac­com­mod­ated to­geth­er, provided this is also in the in­terests of the child.

² If the sen­tence is not served in a pen­al in­sti­tu­tion, but in an­oth­er ap­pro­pri­ate in­sti­tu­tion, the pris­on in­mate is sub­ject to the reg­u­la­tions of that in­sti­tu­tion un­less the ex­ec­ut­ive au­thor­ity or­ders oth­er­wise.

¹ The pris­on in­mate is ob­liged to work. Wherever pos­sible, the work should be ap­pro­pri­ate to his skills, edu­ca­tion and train­ing and his in­terests.

² If he con­sents to do so, the pris­on in­mate may work for a private em­ploy­er.

Where he shows the re­quired aptitude and the pos­sib­il­ity ex­ists, the pris­on in­mate is giv­en the op­por­tun­ity to un­der­go ba­sic and ad­vanced train­ing ap­pro­pri­ate to his skills.

¹ The pris­on in­mate re­ceives a wage for his work based on his per­form­ance and ac­cord­ing to the cir­cum­stances.

² The pris­on in­mate may freely dis­pose of only part of his wage while serving his sen­tence. The re­main­ing part is with­held un­til the in­mate has been re­leased. The wage may neither be pledged, seized nor in­cluded in an in­solv­ent es­tate. Any as­sign­ment or pledge of the wage is null and void.

³ If the pris­on in­mate par­ti­cip­ates in ba­sic or ad­vanced train­ing in­stead of work in ac­cord­ance with his sen­tence man­age­ment plan, he re­ceives ap­pro­pri­ate re­mu­ner­a­tion.

¹ The pris­on in­mate has the right to re­ceive vis­it­ors and to cul­tiv­ate con­tacts with per­sons out­side the in­sti­tu­tion. Con­tact with close re­l­at­ives and friends shall be fa­cil­it­ated.

² Con­tact may be mon­itored and for the pre­ser­va­tion of or­der and se­cur­ity in the pen­al in­sti­tu­tion it may be re­stric­ted or pro­hib­ited. The mon­it­or­ing of vis­its is not per­mit­ted without the know­ledge of those con­cerned. The fore­go­ing does not ap­ply to pro­ced­ur­al meas­ures in or­der to se­cure evid­ence for the pur­poses of a pro­sec­u­tion.

³ Cler­ics, doc­tors, at­tor­neys, not­ar­ies and guard­i­ans as well as per­sons with com­par­able du­ties may be per­mit­ted to com­mu­nic­ate freely with the pris­on in­mates sub­ject to the gen­er­al in­sti­tu­tion rules.

⁴ Con­tact with de­fence at­tor­neys must be per­mit­ted. Vis­its from the de­fence at­tor­ney may be su­per­vised but con­ver­sa­tions may not be listened in on. In­spect­ing the con­tent of cor­res­pond­ence and at­tor­neys' doc­u­ments is not per­mit­ted. Con­tact with at­tor­neys may be pro­hib­ited by the com­pet­ent au­thor­ity in the event of ab­use.

⁵ Com­mu­nic­a­tions with the su­per­vis­ory au­thor­it­ies may not be mon­itored.

⁶ The pris­on in­mate shall be gran­ted re­lease on tem­por­ary li­cence to an ap­pro­pri­ate ex­tent in or­der to cul­tiv­ate re­la­tions with the out­side world, pre­pare for his re­lease or where there are spe­cial cir­cum­stances, provided his con­duct in cus­tody does not pre­clude this and there is no risk that he will ab­scond or com­mit fur­ther of­fences.

^6bis Of­fend­ers sub­ject to in­def­in­ite in­car­cer­a­tion are not gran­ted re­lease on tem­por­ary li­cence or oth­er re­lax­a­tions of the ex­e­cu­tion of the sen­tence dur­ing the sen­tence served pri­or to in­car­cer­a­tion.¹²⁷

⁷ Art­icle 36 of the Vi­enna Con­ven­tion of 24 April 1963¹²⁸ on Con­su­lar Re­la­tions and oth­er reg­u­la­tions un­der in­ter­na­tion­al law on vis­its and cor­res­pond­ence that are bind­ing on Switzer­land are re­served.

¹ The per­son­al ef­fects and the ac­com­mod­a­tion of the pris­on in­mate may be searched in the in­terests of main­tain­ing or­der and se­cur­ity in the pen­al in­sti­tu­tion.

² A pris­on in­mate who is sus­pec­ted of con­ceal­ing un­per­mit­ted art­icles about his per­son or in his body, may be sub­jec­ted to a body search. The search must be con­duc­ted by a per­son of the same gender. If the re­mov­al of cloth­ing is re­quired, this must be car­ried out in the ab­sence of oth­er pris­on in­mates. Searches of body cav­it­ies must be car­ried out by a doc­tor or oth­er med­ic­ally qual­i­fied staff.

¹ If the pris­on in­mate has served two thirds of his sen­tence, provided this amounts to at least three months, he shall be re­leased on pa­role by the com­pet­ent au­thor­ity if this is jus­ti­fied by his con­duct while in cus­tody and it is not ex­pec­ted that he will com­mit fur­ther felon­ies or mis­de­mean­ours.

² The com­pet­ent au­thor­ity shall as­sess ex of­fi­cio wheth­er the in­mate may be re­leased on pa­role. It shall ob­tain a re­port from the in­sti­tu­tion board. The pris­on in­mate shall be gran­ted a hear­ing.

³ If pa­role is re­fused, the com­pet­ent au­thor­ity must re­as­sess the ques­tion of wheth­er pa­role may be gran­ted at least once each year.

⁴ If the pris­on in­mate has served half of his sen­tence, provided this amounts to at least three months, he may be re­leased on pa­role by way of ex­cep­tion, if ex­cep­tion­al per­son­al cir­cum­stances jus­ti­fy this.

⁵ In the case of per­sons serving a life sen­tence, pa­role un­der para­graph 1 is pos­sible at the earli­est after 15 years, and un­der para­graph 4 at the earli­est after ten years.

¹ A per­son re­leased on pa­role is made sub­ject to a pro­ba­tion­ary peri­od of a dur­a­tion that cor­res­ponds to the re­mainder of his sen­tence. The peri­od however amounts to at least one year and no more than five years.

² The ex­ec­ut­ive au­thor­ity shall nor­mally or­der pro­ba­tion as­sist­ance for the dur­a­tion of the pro­ba­tion­ary peri­od. It may im­pose con­duct or­ders on the per­son re­leased on pa­role.

³ If pa­role is gran­ted to an in­mate serving a cus­todi­al sen­tence for an of­fence men­tioned in Art­icle 64 para­graph 1, and if on ex­piry of the pro­ba­tion­ary peri­od a con­tinu­ation of the pro­ba­tion as­sist­ance or the con­duct or­ders ap­pear to be re­quired in or­der to re­duce the risk of fur­ther of­fences of this type be­ing com­mit­ted, the court may at the re­quest of the ex­ec­ut­ive au­thor­ity ex­tend the pro­ba­tion as­sist­ance or the con­duct or­ders in each case by one to five years or im­pose a new con­duct or­der for this peri­od. A re­call to cus­tody in ac­cord­ance with Art­icle 95 para­graph 5 is not pos­sible in such cases.

If the per­son re­leased on pa­role is of good be­ha­viour throughout the pro­ba­tion­ary peri­od, he is gran­ted fi­nal re­lease.

¹ If a per­son re­leased on pa­role com­mits a felony or mis­de­mean­our dur­ing the pro­ba­tion­ary peri­od, the court judging the new of­fence shall or­der his re­call to cus­tody.

² If, des­pite the com­mis­sion of a felony or mis­de­mean­our dur­ing the pro­ba­tion­ary peri­od, it is not ex­pec­ted that the of­fend­er will com­mit fur­ther of­fences, the court shall dis­pense with a re­call to cus­tody. It may ad­mon­ish the of­fend­er and ex­tend the pro­ba­tion­ary peri­od by no more than half of the peri­od ori­gin­ally fixed by the com­pet­ent au­thor­ity. If the ex­ten­sion is ordered after the ex­piry of the ori­gin­al pro­ba­tion­ary peri­od, it be­gins on the day on which it is ordered. The pro­vi­sions on pro­ba­tion as­sist­ance and con­duct or­ders ap­ply (Art. 93–95).

³ If a per­son re­leased on pa­role fails to com­ply with the con­di­tions of pro­ba­tion as­sist­ance or dis­reg­ards the con­duct or­ders, Art­icle 95 para­graphs 3–5 ap­plies.

⁴ A re­call to cus­tody may not be ordered if three years have elapsed since the ex­piry of the pro­ba­tion­ary peri­od.

⁵ Any peri­od of time spent on re­mand that the of­fend­er has served dur­ing the re­call to cus­tody pro­ceed­ings is taken in­to ac­count in the re­mainder of his sen­tence.

⁶ If the re­quire­ments for an un­sus­pen­ded cus­todi­al sen­tence are ful­filled due to the new of­fence and if this co­in­cides with the re­mainder of the sen­tence that must be ex­ecuted by the re­call to cus­tody, the court shall im­pose a cu­mu­lat­ive sen­tence in ap­plic­a­tion of Art­icle 49 a. The rules on pa­role again ap­ply to this sen­tence. If only the re­mainder of the sen­tence is ex­ecuted, Art­icle 86 para­graphs 1–4 ap­plies.

⁷ If the re­mainder of a sen­tence that must be ex­ecuted in ac­cord­ance with a de­cision on re­call to cus­tody co­in­cides with the ex­e­cu­tion of a meas­ure un­der Art­icles 59–61, Art­icle 57 para­graphs 2 and 3 ap­plies.

¹ A per­son sub­ject to the ex­e­cu­tion of a meas­ure un­der Art­icles 59–61, may only be ac­com­mod­ated without in­ter­rup­tion sep­ar­ately from the oth­er in­mates of an in­sti­tu­tion for the ex­e­cu­tion of meas­ures if this is es­sen­tial:

a.

as a tem­por­ary thera­peut­ic meas­ure;

b.

for the pro­tec­tion of oth­er in­mates of the in­sti­tu­tion or of third parties;

c.

as a dis­cip­lin­ary sanc­tion;

d.¹²⁹

to pre­vent oth­er pris­on in­mates from be­ing in­flu­enced by ideas that may en­cour­age them to carry out ter­ror­ist activ­it­ies, provided there is spe­cif­ic evid­ence of such an in­flu­ence.

² At the start of the ex­e­cu­tion of the meas­ure, a sen­tence man­age­ment plan is drawn up in con­sulta­tion with the in­mate or his leg­al rep­res­ent­at­ive. This in­cludes in par­tic­u­lar de­tails of the treat­ment of the in­mate's men­tal dis­order, de­pend­ence or de­vel­op­ment­al dis­order and on meas­ures to pre­vent the en­dan­ger­ment of oth­ers.

^2bis Meas­ures un­der Art­icles 59–61 and 64 may be ex­ecuted in the form of ex­tern­al ac­com­mod­a­tion and day re­lease em­ploy­ment if there is a jus­ti­fied opin­ion that this will sig­ni­fic­antly con­trib­ute to the aim of the meas­ure be­ing achieved, and if there is no risk that the in­mate will ab­scond or will com­mit fur­ther of­fences. Art­icle 77a para­graphs 2 and 3 ap­plies by ana­logy.¹³⁰

³ If the in­mate is able to work, he is re­quired to work to the ex­tent that his in-pa­tient treat­ment or care re­quires or per­mits. Art­icles 81–83 ap­ply in an ana­log­ous man­ner.

⁴ Art­icle 84 ap­plies by ana­logy to the re­la­tions of the in­mates of an in­sti­tu­tion for the ex­e­cu­tion of meas­ures with the out­side world, un­less ad­di­tion­al re­stric­tions are re­quired for reas­ons re­lat­ing to the in-pa­tient treat­ment.

^4bis Art­icle 75a ap­plies by ana­logy to ad­mis­sion to an open in­sti­tu­tion and to the au­thor­isa­tion of a re­lax­a­tion in the meas­ures re­gime.¹³¹

^4ter Dur­ing lifelong in­car­cer­a­tion, it is not per­mit­ted to au­thor­ise re­lease on tem­por­ary li­cence or a re­lax­a­tion of the sen­tence re­gime.¹³²

⁵ Art­icle 85 ap­plies by ana­logy to searches and in­spec­tions.

¹ Dis­cip­lin­ary sanc­tions may be im­posed on pris­on in­mates and in­mates of an in­sti­tu­tion for the ex­e­cu­tion of meas­ures who are guilty of in­fringing the in­sti­tu­tion reg­u­la­tions or the sen­tence man­age­ment plan.

² Dis­cip­lin­ary sanc­tions are:

a.

a rep­rim­and;

b.

the tem­por­ary with­draw­al or re­stric­tion of the right to use money, par­ti­cip­ate in re­cre­ation­al activ­it­ies or have ex­tern­al con­tacts;

c.¹³³

a fine; and

d.¹³⁴

sol­it­ary con­fine­ment as an ad­di­tion­al re­stric­tion of liberty.

³ The can­tons shall en­act dis­cip­lin­ary reg­u­la­tions ap­plic­able to the ex­e­cu­tion of sen­tences and meas­ures. The reg­u­la­tions de­tail the dis­cip­lin­ary of­fences, the sanc­tions and how they are fixed, and reg­u­late the pro­ced­ure.

The ex­e­cu­tion of sen­tences and meas­ures may be in­ter­rup­ted for good cause.

¹ Vic­tims and re­l­at­ives of vic­tims as defined in Art­icle 1 para­graphs 1 and 2 of the Vic­tim Sup­port Act of 23 March 2007¹³⁶ (VSA) and third parties who have a le­git­im­ate in­terest may make a writ­ten re­quest to the ex­ec­ut­ive au­thor­ity for the fol­low­ing in­form­a­tion:

a.

the time of ex­e­cu­tion of the sen­tence or meas­ure im­posed on the of­fend­er, in­sti­tu­tion re­spons­ible for ex­e­cu­tion, the form of ex­e­cu­tion if it dif­fers from nor­mal, in­ter­rup­tions and re­lax­a­tions in the sen­tence or meas­ure, (Art. 75a para. 2), pa­role and fi­nal re­lease, and the re­act­iv­a­tion of the ex­e­cu­tion of a sen­tence or meas­ure;

b.

im­me­di­ate no­ti­fic­a­tion of the es­cape of an of­fend­er and of his or her re­cap­ture.

² The ex­ec­ut­ive au­thor­ity de­cides on the re­quest after con­sult­ing the of­fend­er.

³ It may re­fuse to provide the in­form­a­tion or re­voke a pre­vi­ous de­cision to provide in­form­a­tion only if the of­fend­er’s le­git­im­ate in­terests jus­ti­fy this.

⁴ If the ex­ec­ut­ive au­thor­ity ap­proves a re­quest, it shall ad­vise the per­son en­titled to in­form­a­tion of the con­fid­en­ti­al­ity of the in­form­a­tion dis­closed. Per­sons en­titled to vic­tim sup­port un­der the VSA are not re­quired to main­tain con­fid­en­ti­al­ity in their deal­ings with a coun­sel­lor at a coun­selling ser­vice un­der Art­icle 9 VSA.

¹ Pro­ba­tion as­sist­ance is in­ten­ded to pro­tect the pro­ba­tion­ers from re­offend­ing and en­able their so­cial in­teg­ra­tion. The com­pet­ent au­thor­ity for pro­ba­tion as­sist­ance provides and ar­ranges for the re­quired so­cial and spe­cial­ist ser­vices.

² Per­sons work­ing in the field of pro­ba­tion as­sist­ance must treat mat­ters that come to their know­ledge in the course of their work as con­fid­en­tial. They may dis­close in­form­a­tion on the per­son­al cir­cum­stances of a pro­ba­tion­er to third parties only if the pro­ba­tion­er or the per­son in charge of pro­ba­tion as­sist­ance has con­sen­ted in writ­ing.

³ The au­thor­it­ies for the ad­min­is­tra­tion of crim­in­al justice may ob­tain a re­port on the pro­ba­tion­er from the com­pet­ent au­thor­ity for pro­ba­tion as­sist­ance.

¹ The con­duct or­ders that the court or the ex­ec­ut­ive au­thor­ity may im­pose on the of­fend­er for dur­a­tion of the pro­ba­tion­ary peri­od re­late in par­tic­u­lar to the prac­tice of a pro­fes­sion, place of res­id­ence, driv­ing mo­tor vehicles, re­par­a­tion and med­ic­al and psy­cho­lo­gic­al ther­apy.

² In the case of of­fences against sexu­al in­teg­rity, the of­fend­er may be re­quired to at­tend a course.

¹ Pri­or to mak­ing their de­cision on pro­ba­tion as­sist­ance and con­duct or­ders, the court and the ex­ec­ut­ive au­thor­ity may ob­tain a re­port from the au­thor­ity re­spons­ible for su­per­vising the pro­ba­tion as­sist­ance and the con­duct or­ders or for en­for­cing activ­ity pro­hib­i­tion or­ders or con­tact pro­hib­i­tion and ex­clu­sion or­ders.¹³⁸ The per­son con­cerned may state his opin­ion on the re­port. Dif­fer­ences of opin­ion must be re­cor­ded in the re­port.

² The or­der­ing of pro­ba­tion as­sist­ance and con­duct or­ders must be noted and jus­ti­fied in the judg­ment or the de­cision.

³ If the of­fend­er fails to com­ply with the con­di­tions of pro­ba­tion as­sist­ance or dis­reg­ards the con­duct or­ders or if the pro­ba­tion as­sist­ance or con­duct or­ders can­not be im­ple­men­ted or are no longer re­quired, the com­pet­ent au­thor­ity shall sub­mit a re­port to the court or the au­thor­it­ies re­spons­ible for the ex­e­cu­tion of sen­tences and meas­ures.

⁴ The court or the ex­ec­ut­ive au­thor­ity may in the cases men­tioned in para­graph 3:

a.

ex­tend the pro­ba­tion­ary peri­od by one half;

b.

re­voke or re­or­gan­ise the pro­ba­tion as­sist­ance;

c.

modi­fy or re­voke the con­duct or­ders or is­sue new con­duct or­ders.

⁵ The court may in the cases in para­graph 3 re­voke the sus­pen­ded sen­tence or or­der the re­call to cus­tody for the ex­e­cu­tion of the sen­tence or meas­ure if it is ser­i­ously ex­pec­ted that the of­fend­er will com­mit fur­ther of­fences.

The can­tons shall guar­an­tee the pro­vi­sion of so­cial as­sist­ance for the dur­a­tion of the crim­in­al pro­ceed­ings and of the ex­e­cu­tion of the sen­tence which may be claimed vol­un­tar­ily.

¹ The right to pro­sec­ute is sub­ject to a time lim­it of:

a.

30 years if the of­fence car­ries a cus­todi­al sen­tence of life;

b.

15 years if the of­fence car­ries a cus­todi­al sen­tence of more than three years;

c.

10 years if the of­fence car­ries a cus­todi­al sen­tence of three years;

d.

sev­en years if the of­fence car­ries a dif­fer­ent pen­alty.¹³⁹

² In the case of sexu­al acts with chil­dren (Art. 187) and in the case of­fences un­der Art­icles 111, 113, 122, 124, 182, 189–191, 193, 193a, 195 and 197 para­graph 3 in­volving a child un­der 16, the lim­it­a­tion peri­od in each case runs at least un­til the vic­tim has at­tained the age of 25.¹⁴⁰

³ If a judg­ment is is­sued by a court of first in­stance be­fore ex­piry of the lim­it­a­tion peri­od, the time lim­it no longer ap­plies.

⁴ The lim­it­a­tion of the right to pro­sec­ute in the case of sexu­al acts with chil­dren (Art. 187) and de­pend­ent minors (Art. 188) and of­fences un­der Art­icles 111–113, 122, 182, 189–191 and 195 in­volving a child un­der 16 is gov­erned by para­graphs 1–3 if the of­fence was com­mit­ted be­fore the amend­ment of 5 Oc­to­ber 2001¹⁴¹ came in­to force and the lim­it­a­tion of the right to pro­sec­ute had not yet taken ef­fect.¹⁴²

The lim­it­a­tion peri­od be­gins:

a.

on the day on which the of­fend­er com­mit­ted the of­fence;

b.

on the day on which the fi­nal act was car­ried out if the of­fence con­sists of a series of acts car­ried out at dif­fer­ent times;

c.

on the day on which the crim­in­al con­duct ceases if the crim­in­al con­duct con­tin­ues over a peri­od of time.

¹ The right to ex­ecute a sen­tence is sub­ject to a lim­it­a­tion peri­od of:

a.

30 years if a cus­todi­al sen­tence of life has been im­posed;

b.

25 years if a cus­todi­al sen­tence of ten or more years has been im­posed;

c.

20 years if a cus­todi­al sen­tence at least five and less than ten years has been im­posed;

d.

15 years, if a cus­todi­al sen­tence of more than one and less than five years has been im­posed;

e.

five years if any oth­er sen­tence has been im­posed.

² The lim­it­a­tion peri­od for a cus­todi­al sen­tence is ex­ten­ded:

a.

by the time that the of­fend­er spends serving without in­ter­rup­tion that or any oth­er cus­todi­al sen­tence or meas­ure that is ex­ecuted im­me­di­ately be­fore­hand;

b.

by the length of the pro­ba­tion­ary peri­od in the case of re­lease on pa­role.

The lim­it­a­tion peri­od be­gins on the day on which the judg­ment be­comes leg­ally en­force­able, and in the case of sus­pen­ded sen­tences or the ex­e­cu­tion of a meas­ure, on the day on which the ex­e­cu­tion of the pen­alty is ordered.

¹ There is no stat­ute of lim­it­a­tions for the of­fences of:

a.

gen­o­cide (Art. 264);

b.

crimes against hu­man­ity (Art. 264a para. 1 and 2);

c.

war crimes (Art. 264c para. 1–3, 264d para. 1 and 2, 264e para. 1 and 2, 264f, 264g para. 1 and 2 and 264h);

d.

felon­ies that have caused or threatened to cause danger to life and limb to a large num­ber of per­sons as a meth­od of ex­tor­tion or duress, in par­tic­u­lar through the use of means of mass de­struc­tion, the caus­ing of cata­strophes, or as part of a host­age tak­ing of­fence;

e.¹⁴³

sexu­al acts with chil­dren (Art. 187 Nos 1 and 1^bis), sexu­al ab­use and in­de­cent as­sault (Art. 189), rape (Art. 190), sexu­al acts with per­sons in­cap­able of prop­er judge­ment or res­ist­ance (Art. 191), ex­ploit­a­tion of a per­son in a po­s­i­tion of need or de­pend­ency (Art. 193) and de­cep­tion as to the sexu­al char­ac­ter of an act (Art. 193a) if com­mit­ted against chil­dren un­der the age of 12.¹⁴⁴

² If the right to pro­sec­ute the of­fence would have be­come time barred had Art­icles 97 and 98 ap­plied, the court may in its dis­cre­tion im­pose a more le­ni­ent pen­alty.

³ Para­graphs 1 let­ters a, c and d and para­graph 2 ap­ply if the right to pro­sec­ute or ex­ecute the sen­tence had not be­come time barred by 1 Janu­ary 1983 in ac­cord­ance with the law ap­plic­able un­til that point in time. Para­graph 1let­ter b ap­plies if the right to pro­sec­ute or ex­ecute the pen­alty has not be­come time barred un­der the pre­vi­ous law when the Amend­ment of 18 June 2010 to this Code comes in­to force. Para­graph 1 let­ter e ap­plies if the pro­sec­u­tion or the sen­tence has not be­come time barred by 30 Novem­ber 2008 in ac­cord­ance with the law ap­plic­able un­til that point in time.^{145 146}

¹ If a felony or mis­de­mean­our is com­mit­ted in an un­der­tak­ing in the ex­er­cise of com­mer­cial activ­it­ies in ac­cord­ance with the ob­jects of the un­der­tak­ing and if it is not pos­sible to at­trib­ute this act to any spe­cif­ic nat­ur­al per­son due to the in­ad­equate or­gan­isa­tion of the un­der­tak­ing, then the felony or mis­de­mean­our is at­trib­uted to the un­der­tak­ing. In such cases, the un­der­tak­ing shall be li­able to a fine not ex­ceed­ing 5 mil­lion francs.

² If the of­fence com­mit­ted falls un­der Art­icles 260^ter, 260^quin­quies, 305^bis, 322^ter, 322^quin­quies, 322^sep­ties para­graph 1 or 322^octies, the un­der­tak­ing is pen­al­ised ir­re­spect­ive of the crim­in­al li­ab­il­ity of any nat­ur­al per­sons, provided the un­der­tak­ing has failed to take all the reas­on­able or­gan­isa­tion­al meas­ures that are re­quired in or­der to pre­vent such an of­fence.¹⁴⁷

³ The court as­sesses the fine in par­tic­u­lar in ac­cord­ance with the ser­i­ous­ness of the of­fence, the ser­i­ous­ness of the or­gan­isa­tion­al in­ad­equa­cies and of the loss or dam­age caused, and based on the eco­nom­ic abil­ity of the un­der­tak­ing to pay the fine.

⁴ Un­der­tak­ings with­in the mean­ing of this title are:

a.

any leg­al en­tity un­der private law;

b.

any leg­al en­tity un­der pub­lic law with ex­cep­tion of loc­al au­thor­it­ies;

c.

com­pan­ies;

d.

sole pro­pri­et­or­ships¹⁴⁸.

Con­tra­ven­tions are acts that are pun­ish­able by a fine.

The pro­vi­sions of the First Part also ap­ply to con­tra­ven­tions, sub­ject to the fol­low­ing changes.

¹ The pro­vi­sions on sus­pen­ded and par­tially sus­pen­ded sen­tences (Art. 42 and 43), on ex­pul­sion (Art. 66a–66d) and on cor­por­ate crim­in­al li­ab­il­ity (Art. 102) do not ap­ply to con­tra­ven­tions.¹⁵⁰

² At­tempt and com­pli­city are of­fences only in the cases ex­pressly men­tioned in this Code.

³ Cus­todi­al meas­ures (Art. 59–61 and 64), activ­ity pro­hib­i­tion or­ders (Art. 67), con­tact pro­hib­i­tion and ex­clu­sion or­ders (Art. 67b) and the pub­lic­a­tion of the judg­ment (Art. 68) are per­mit­ted only in the cases ex­pressly men­tioned in this Code.¹⁵¹

¹ Un­less the law provides oth­er­wise, the max­im­um amount of a fine is 10,000 francs.

² In its judg­ment, the court shall im­pose an al­tern­at­ive cus­todi­al sen­tence of at least one day and a max­im­um of three months for the event that the fine is wil­fully not paid.

³ The court de­term­ines the fine and the al­tern­at­ive cus­todi­al sen­tence based on the of­fend­er's cir­cum­stances so that the of­fend­er re­ceives the sen­tence that is com­men­sur­ate with his culp­able con­duct.

⁴ On ret­ro­spect­ive pay­ment of the fine, the of­fend­er is re­leased from the al­tern­at­ive cus­todi­al sen­tence.

⁵ Art­icles 35 and 36 para­graph 2 ap­ply by ana­logy to the col­lec­tion and con­ver­sion of the fine.¹⁵²

The right to pro­sec­ute and to ex­ecute a sen­tence is sub­ject to a lim­it­a­tion peri­od of three years.

¹ Close re­l­at­ives of a per­son are his or her spouse, re­gistered part­ner, re­l­at­ives of dir­ect lin­eage, full sib­lings and half sib­lings, ad­opt­ive par­ents, ad­opt­ive sib­lings and ad­opt­ive chil­dren.¹⁵⁵

² Fam­ily mem­bers are per­sons who live in the same house­hold.

³ Pub­lic of­fi­cialsare the of­fi­cials and em­ploy­ees of a pub­lic ad­min­is­trat­ive au­thor­ity or of an au­thor­ity for the ad­min­is­tra­tion of justice as well as per­sons who hold of­fice tem­por­ar­ily or are em­ployed tem­por­ar­ily by a pub­lic ad­min­is­trat­ive au­thor­ity or by an au­thor­ity for the ad­min­is­tra­tion of justice or who carry out of­fi­cial func­tions tem­por­ar­ily.

^3bis If a pro­vi­sion refers to the term "prop­erty", it also ap­plies to an­im­als.¹⁵⁶

⁴ Of­fi­cial doc­u­mentsare writ­ten works in­ten­ded and de­signed to prove a fact of leg­al rel­ev­ance, or in­dic­a­tions that are in­ten­ded to prove such a fact. Re­cord­ings on im­age and data car­ri­ers are equi­val­ent to a writ­ten doc­u­ment, provided that they serve the same pur­pose.

⁵ Pub­lic deeds are of­fi­cial doc­u­ments is­sued by mem­bers of an au­thor­ity, pub­lic of­fi­cials and hold­ers of pub­lic of­fice in the ex­er­cise of­fi­cial powers. Of­fi­cial doc­u­ments that are is­sued in private law trans­ac­tions by the man­age­ment of com­mer­cial com­pan­ies, state mono­poly com­pan­ies or oth­er pub­lic cor­por­a­tions or in­sti­tu­tions are not pub­lic of­fi­cial doc­u­ments.

⁶ A day has 24 suc­cess­ive hours. The month and the year are cal­cu­lated ac­cord­ing to the cal­en­dar.

⁷ Time spent on re­mand is any form of de­ten­tion, re­mand, pre­vent­ive de­ten­tion or de­ten­tion pending ex­tra­di­tion im­posed in crim­in­al pro­ceed­ings.

Any per­son who kills a per­son in­ten­tion­ally, but without ful­filling the spe­cial re­quire­ments of the fol­low­ing art­icles, shall be li­able to a cus­todi­al sen­tence¹⁵⁷ of not less than five years.

Where the of­fend­er acts in a par­tic­u­larly un­scru­pu­lous man­ner, in which the motive, the ob­ject­ive or the meth­od of com­mis­sion is par­tic­u­larly de­praved, a cus­todi­al sen­tence for life or a cus­todi­al sen­tence of not less than ten years shall be im­posed.¹⁵⁹

Where the of­fend­er acts in a state of ex­treme emo­tion that is ex­cus­able in the cir­cum­stances, or in a state of pro­found psy­cho­lo­gic­al stress, a cus­todi­al sen­tence of from one to ten years shall be im­posed.¹⁶¹

Any per­son who for com­mend­able motives, and in par­tic­u­lar out of com­pas­sion for the vic­tim, causes the death of a per­son at that per­son’s own genu­ine and in­sist­ent re­quest shall be li­able to a cus­todi­al sen­tence not ex­ceed­ing three years or to a mon­et­ary pen­alty¹⁶³ .

Any per­son who for selfish motives in­cites or as­sists an­oth­er to com­mit or at­tempt to com­mit sui­cide shall, if that oth­er per­son there­after com­mits or at­tempts to com­mit sui­cide, be li­able to a cus­todi­al sen­tence not ex­ceed­ing five years or to a mon­et­ary pen­alty¹⁶⁴ .

If a moth­er kills her child either dur­ing de­liv­ery or while she is un­der the in­flu­ence of the ef­fects of giv­ing birth, sa cus­todi­al sen­tence not ex­ceed­ing three years or a mon­et­ary pen­alty shall be im­posed.

Any per­son who causes the death of an­oth­er through neg­li­gence or reck­less­ness shall be li­able to a cus­todi­al sen­tence not ex­ceed­ing three years or to a mon­et­ary pen­alty.

¹ Any per­son who ter­min­ates a preg­nancy with the con­sent of the preg­nant wo­man or in­cites or as­sists a preg­nant wo­man to ter­min­ate her preg­nancy without the re­quire­ments of Art­icle 119 be­ing ful­filled shall be li­able to a cus­todi­al sen­tence not ex­ceed­ing five years or to a mon­et­ary pen­alty.

² Any per­son who ter­min­ates a preg­nancy without the con­sent of the preg­nant wo­man shall be li­able to a cus­todi­al sen­tence of from one¹⁶⁷ to ten years.

³ Any wo­man who has her preg­nancy ter­min­ated or oth­er­wise par­ti­cip­ates in the ter­min­a­tion of her preg­nancy fol­low­ing the end of the twelfth week since her last peri­od and without the re­quire­ments of Art­icle 119 be­ing ful­filled shall be li­able to a cus­todi­al sen­tence not ex­ceed­ing three years or to a mon­et­ary pen­alty.

⁴ Cases fall­ing un­der para­graphs 1 and 3 above are sub­ject to a lim­it­a­tion peri­od of three years.¹⁶⁸