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The sanctions of the Swiss Criminal Code are divided into penalties and measures. Penalties include fines and imprisonment, whereas measures include inpatient therapeutic treatment, outpatient treatment and incarceration. These different measures are explained below. For further information on the specificities of penalties and measures, please turn to one of our lawyers for criminal law in Switzerland.
A measure must be ordered if a penalty alone is not sufficient to reduce the risk of further offences by the offender (Art. 56 para. 1 lit. a SCC), the offender requires treatment or treatment is required in the interest of public safety (Art. 56 para. 1 lit. b SCC) and the individual requirements for a measure are met (Art. 59-61, 63 and 64). If the circumstances of the offence indicate a mental disorder in the offender, the prosecuting authorities must clarify ex officio whether the requirements for a measure were met. The court may only order a measure if an expert assessment deems it necessary. This expert opinion must consider the necessity and prospects of success of treatment for the offender (Art. 56 para. 3 lit. a SCC), the nature and probability of possible additional offence (Art. 56 para. 3 lit. b SCC) and the the ways in which the measure may be implemented (Art. 56 para. 3 lit. c SCC). The expert is not required to comment on whether the offence was related to a particular physical or mental condition, but only on the questions set out in Article 56 para. 3 lit. a-c SCC, as set out above.
If life imprisonment is a possibility, the court shall base its decision on the opinions of at least two independent experts (Art. 56 para. 4bis SCC).
In Switzerland, a dualistic vicarious system prevails. Dualistic means that if the requirements for a penalty and for a measure are met, the court orders both sanctions (Art. 57 para. 1 SCC). Vicarious means that an inpatient measure precedes an enforceable custodial sentence pronounced at the same time and that the execution of a custodial sentence precedes custody (Art. 57 para. 2 SCC). The deprivation of liberty associated with the measure must be taken into account in determining the penalty. (Art. 57 para. 3 SCC). If you have any questions about the dualistic vicarious system, a lawyer for criminal law in St. Gallen, Zurich or Frauenfeld will be happy to help you.
An inpatient therapeutic measure may be ordered by the court if the offender is seriously mentally disturbed (Art. 59 para. 1 SCC). The prerequisite is that the offender has committed a felony or misdemeanor which is related to his mental disorder (Art. 59 para. 1 lit. a SCC) and it is expected that the measure will reduce the risk of further offences being committed in which his mental disorder is a factor (Art. 59 para. 1 lit. b SCC).
This treatment is initially ordered for a maximum of five years. The court can extend it by five years if the conditions for conditional release have not yet been met (Art. 59 para. 4 SCC). One of our criminal lawyers in Zurich, St. Gallen or Frauenfeld can help you to assess whether the conditions for a conditional release have been met.
If the offender is addicted to narcotic substances or otherwise addicted and the offender has committed a felony or misdemeanor that is related to their addiction, the court may order inpatient treatment (Art. 60 para. 1 lit. a SCC). With this inpatient measure, it is expected that the risk of repeat offenses related to the addiction is lowered (Art. 60 para. 1 lit. b SCC).
Addiction treatment lasts a maximum of three years. The court may extend it once by one year, if the conditions for conditional release have not been met after three years (Art. 60 para. 4 SCC).
This measure can only be ordered for young adults under the age of 25 who are significantly disturbed in their personality development (Art. 61 para. 1 SCC). A developmental disorder is characterized by severe misconduct in several areas of life, such as in the perception and interpretation of events and people, concerning their emotions and mood, in impulse control and the satisfaction of needs, and in human relationships. In addition, the offender must have committed a felony or misdemeanor that is related to their personality development disorder (Article 61(1)(a) SCC) and it is expected that the measure will counter the risk of further offences related to developmental disorder (Article 61(1)(b) SCC). The aim of this measure is to provide the offender with the skills to live independently and without further offending (Art. 61 para. 3 SCC).
This measure lasts for a maximum of four years. In the event of reassignment after conditional release, the addiction treatment may not exceed the maximum duration of six years. The measure must be terminated at the latest when the offender reaches the age of 30 (Art. 61 para. 4 SCC). In these circumstances, a criminal lawyer in Switzerland can help you to determine whether the conditions for a conditional sentence are met or not.
In order for incarceration to be considered, the offender must have committed an act punishable by a maximum term of five years or more (e.g. murder, robbery) by which he seriously impairs or intended to impair the physical, psychological or sexual integrity of another person (Art. 64 para. 1 SCC). In addition, it must be expected that the offender will commit further acts of this nature or, 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 imply success. (Art. 64 para. 1 lit. a and b SCC).
Ordinary incarceration begins after the execution of the sentence and is unlimited in time. The offender is conditionally released from custody as soon as it is expected that they will be of good behavior when at liberty, with a probationary period of two to five years (Art. 64a para. 1 StGB).
In order to receive a sentence of indefinite incarceration, the offender must have committed murder, intentional homicide, grievous bodily harm, robbery, rape, sexual assault, deprivation of liberty or kidnapping, hostage-taking, enforced disappearance, human trafficking, genocide, a crime against humanity or a war crime (Art. 64 para. 1bis SCC). The offender must also have caused or intended to cause particularly serious harm to the victim, there must be a very high probability that he will commit a crime again, and the offender must be classified as permanently incapable of treatment (Art. 64 para. 1bis lit. a-c SCC). The execution of the custodial sentence takes priority over indefinite incarceration (Art. 64 para. 2 SCC).
The offender may only be released from life imprisonment if there are new scientific findings which indicate that the offender can be treated. (Art. 64c para. 1 SCC).
If you are unclear about the distinction between ordinary and life imprisonment, please contact a criminal law attorney in Switzerland.
Unlike inpatient treatment, outpatient treatment does not require a special measure facility. It is carried out at one’s discretion through regular visits to a therapist. During the execution of a prison sentence, it is carried out in a penal institution with appropriate treatment services.
Instead of an inpatient measure, an outpatient measure may be ordered if the offender commits a punishable act that is related to their condition (Art. 63 para. 1 lit. a SCC) and it is to be expected that the risk of further acts related to the offender’s condition can be countered (Art. 63 para. 1 lit. b SCC).
Outpatient treatment can last for a maximum of five years, although it can be extended by five years if the conditions for outpatient treatment still exist (Art. 63 para. 4 SCC).
If there are questions as to when inpatient and when outpatient treatment can be ordered, our criminal law attorneys in Frauenfeld, St. Gallen or Zurich will be happy to help.