-
» Excellent «
In the Rupperswil case, the Lenzburg District Court sentenced the murderer to indefinite incarceration and regular custody. This means that if the perpetrator is released from prison early, he will still have to serve a custodial sentence, as a second line of security. This sentence has been judged to be appropriate and reasonable in practice. In theory, this combination of life imprisonment and a custodial sentence is legal nonsense.
Life imprisonment is a penalty, whilst a custodial sentence is a measure. According to Art. 64 para. 3 SCC, it is possible to order both sanctions. On the basis of this, it can be concluded that the combination is permissible. In the Federal Supreme Court ruling “BGE 142 IV 56”, the court affirmed the cumulative ordering of life imprisonment and ordinary custody. It justifies this by stating that the requirements for release from custody are higher than the requirements for release from life imprisonment, and thus society is afforded greater protection.
If the offender has been sentenced to life imprisonment, he may leave prison after 15 years at the earliest (Art. 86 para. 5 SCC). This is possible if the offender’s behavior in prison justifies an early release and it can be assumed that he will commit further crimes or misdemeanors (Art. 86 para. 1 SCC).
Indefinite incarceration may be ordered if the offender has committed murder, intentional homicide, grievous bodily harm, rape, robbery, hostage-taking, arson, endangering life or any other act punishable by a maximum term of five years or more (Art. 64 para. 1 SCC). In addition, he must have thereby seriously impaired or intended to impair the physical, psychological or sexual integrity of another person (Art. 64 para. 1 sentence 2 SCC). It must also be seriously expected that the perpetrator will commit further acts of this kind on account of the personality traits of the perpetrator, the circumstances of the offence and his entire life circumstances (Art. 64 para. 1 lit. a SCC) or that it must be seriously to be expected that the perpetrator will commit further acts of this kind on account of a persistent or long-lasting mental disorder of considerable severity (Art. 64 para. 1 lit. b SCC). In the case of lit. a and b, it is therefore a prerequisite that they can be expected to commit further criminal acts.
If an offender is released early from a life sentence, it is deemed that there is no danger that he will commit further crimes or misdemeanors. This contradicts the requirements of custody, which presupposes that the offender is at risk of recidivism. Both cannot simultaneously be met. The ordering of both sanctions is therefore contradictory. Therefore, the Rupperswil offender will never change from incarceration to custodial sentence.
If you have any questions, please contact our lawyers in St. Gallen, Zurich or Frauenfeld.