-
» Excellent «
To be punishable as a criminal offense, three conditions must be met: there must be the completion of an offense, there must be no grounds for justification and any there must be no grounds for exclusion of guilt. An offense is not considered incomplete, if it was not committed. Or likewise, self-defense is considered grounds for justification. The exclusion of guilt can become applicable if it was not possible for the offender at the time of the offence to recognize the wrongfulness of his act or to act in accordance with this recognition. If culpability is not present, one cannot be punished. If culpability is only partial, i.e. the offender was only partially capable of recognizing why his act was unlawful or he acted according to this belief, the court shall reduce the punishment (Art. 19 para. 2 SCC). If the offender was able to avoid their own incapacity and foresee the act potentially committed in this state, the offender is punishable despite the incapacity (Art. 19 para. 4 SCC). This is relevant in the case of excessive alcohol consumption, which is discussed herein. This constellation illustrated in Article 19 para. 4 is called actio libera in causa (a.l.i.c.). For further information on the grounds for exclusion of guilt, please contact lawyers in St. Gallen, Zurich or Frauenfeld.
If the blood alcohol concentration is less than 2 Promille (0.2 % BAC), there is generally no reduction of culpability. The offender is liable to prosecution. If the blood alcohol concentration is between 2 and 3 Promille (0.2-0.3% BAC), there is usually reduced culpability and the court may mitigate the sentence. As a rule, a blood alcohol concentration of more than 3 Promille (0.3% BAC) constitutes an incapacity to commit a crime. However, these standardized values are only a rough rule of thumb. Alcohol tolerance, personality and the circumstance must always be taken into account in the assessment of culpability.
As stated in a previous article, a distinction is made between intentional and negligent offenses. The actio libera in causa also distinguishes between the intentional and negligent variants.
The intentional actio libera in causa governs the punishment of an intentional offense despite the offender’s incapacity. The state in which the offense was committed must have been intentionally brought about by the offender. When they brought about this state, they must have had intent with regard to the act committed later in this state. Thus, when consuming alcohol, the perpetrator must consider it possible that he will put himself in a state in which he will no longer be able to recognize the wrongness of his deeds and must accept this. At the point of alcohol consumption, he must already consider it possible that he will act in this state.
For example, a man has wanted to hit his neighbor for a long time because he makes noise all the time. Since the man is shy in character, he does not dare to confront his neighbor. He decides to get drunk and go over to confront and hit him. When committing the offense, the man had a blood alcohol concentration of 3 Promille. The perpetrator is thus incapable of guilt. However, he acted with double intent, with regard to getting drunk and also with regard to the act committed in a state of incapacity.
Negligent actio libera in causa regulates the punishment arising from a negligence offense despite one’s incapacity. In contrast to the intentional a.l.i.c., the offender intentionally or negligently brought about the state of incapacity and he foresaw at the time of full incapacity that he would commit a certain offense. An intentional bringing about of the state of incapacity is the consumption of high doses of hard drugs, for example. If the drugs were accidentally taken in surplus, the state of incapacity was induced by negligence.
If a perpetrator has committed an act which he could have avoided and which was foreseeable, he is still punishable, since Art. 19 para. 1 SCC is not applicable. If you are unsure about the type of actio libera in causa, please contact one of our lawyers in Zurich, St. Gallen or Frauenfeld.
If the act committed in the state of incapacity was not foreseeable, there is no actio libera in causa and culpability for committing the act is excluded. If the act committed in the state of incapacity was foreseeable (negligent a.l.i.c.) but not punishable by negligence (i.e. the act expressly does not punish the negligent committing of the act), the punishability for the act is also excluded. Accordingly, the perpetrator is not punishable in both constellations. Art. 263 SCC serves as a catch-all norm. It states that one is punishable under this aspect of the crime. However, the penalties are considerably lower than if the act had been committed by a culpable person.