Error of fact: can ignorance protect you from a penalty?

An error of fact (erroneous belief of circumstance) refers to the discrepancy between conception and reality. Errors are divided into errors of fact (Art. 13 SCC) and errors of unlawfulness (Art. 21 SCC).

error OF FACT

The factual error is subdivided into the error of fact and the permissive error of fact. An error of fact is when an offender fails to recognize facts, on the basis of which the objective requirements of an intentional offense are fulfilled. Two variants are conceivable: The perpetrator assumes a state of affairs in which no element of the crime would be fulfilled at all, or the perpetrator assumes a state of affairs in which a different element of the crime would be fulfilled than the one that actually exists. As a result, the court judges the offender according to the facts that they perceived to be true (Article 13(2) SCC). An erroneous belief is also confusion about the permissibility of certain elements of the offense. Here, the offender is mistaken about the state of affairs, which means he or she fulfills the objective requirements of a recognized ground for justification. An example of this would be that the perpetrator falsely assuming he is acting in self-defense, although such a situation is not at hand. In this case, too, no punishment follows from the objectively fulfilled intent crime (Art. 13 para. 2 SCC).

SPECIAL CASES OF THE error OF FACT

Error in persona

In the case of an error in persona, the perpetrator is not mistaken about the legal qualification of the object of the crime, but only about its concrete form. This is an irrelevant error of motive that does not invalidate the perpetrator’s intent. The punishment follows from the completed intentional crime. For example, the perpetrator want to injure this specific person around whose neck he is just putting his hands from behind. His intent refers to the person, even if he thinks it is another person. The object he attacked and that that he wanted to attack are identical and thus equivalent. Hence, the error is irrelevant.

Aberratio ictus

In this case, the offence does not occur at the object which the offender targeted, but at another object, which the offender did not expect. The perpetrator is punished for his attempt with regard to the targeted object and, if applicable, for the crime of negligence with regard to the object attacked. consider the following scenario. A wants to shoot B and aims the pistol at him. Suddenly, C runs into the line of fire and is hit. A is guilty of attempted homicide of B and negligent homicide of C.

Error about the causal process

Here, the perpetrator is mistaken about the way in which the intended result of the offense is achieved. Minor deviations in the course of events alone cannot exonerate the perpetrator. An error about the causal course is irrelevant if the actual course of events was not extraordinary enough that it could not to be expected. An example: A pushes B from a bridge into a river to drown him. B dies before hitting the water by breaking his neck on a stone on the way. Even if it represents a deviation in the causal sequence of events, the deviation is insignificant.

Error about the time of completion

The perpetrator performs two acts, whereby he erroneously assumes that he has already achieved the tortious success with the first act but has only done so through the second. Some might argue that this is an insignificant error in the causal process. Others would argue that it depends on whether both acts were planned from the outset. If this is the case, punishment occurs for the completed intended offense. If this view is not adopted, punishment is given on the basis of the attempted intended offense in conjunction with a negligence offense. Consider the following scenario: A beats up B and then strangles him. A assumes that B was only stunned by the beating and that he killed him by strangling him. However, B already died from the punches suffered. Depending on which view is followed, A is punishable for intentional homicide (possibly murder) or attempted homicide in connection with negligent homicide. If you have difficulties in differentiating between these in your own criminal case, our lawyers for criminal law in St. Gallen, Zurich or Frauenfeld are happy to explain them to you in more detail.

ERROR as to unlawfulness (ART. 21 SCC)

In the case of unlawful behavior, the perpetrator assumes that he is acting in accordance with the law on the basis of an incorrect legal assessment of the situation at hand. A person is not culpable if he does not know and cannot know that he is acting unlawfully. If the error was avoidable, the court shall reduce the penalty. Consider the following scenario. Man A and his wife B come from the a different culture and have only been living in Switzerland for a few months. When A hits B repeatedly, the neighbors inform the police. A explains that he believed this behavior was justified on the basis of a perceived marital right of chastisement.