The crime of omission

Criminal offenses are, rather exceptionally, not limited to active acts but may under certain circumstances also be fulfilled by an omission of legally required conduct. In this case, criminal offenses are divided into genuine and non-genuine omission offenses. A genuine crime of omission is one in which the penal code punishes the omission of a certain act, such as the ‘Failure to Offer Aid in an Emergency’(Art. 128 Criminal Code). A non-genuine crime of omission occurs when an act that is described as active is fulfilled but only by omission.

A non-genuine crime of omission is always a crime of success. The perpetrator is punished here because they did not prevent the success of a crime, despite their obligation to do so as a guarantor. In this context, success is not limited to a violation of a legally protected right but can also refer to a threat to it. The position of the guarantor forms the core of the crime of omission, as without this defined role the circle of perpetrators would be gaping open and so include every person. Therefore, a special legal duty is defined, limited only to certain persons. A moral or ethical duty is not sufficient here. Criminal law names four possibilities for the existence of an obligatory legal position (Art. 11 CC). The following dictate the presence of a guarantor position: the law (lit.a), a contract (lit. b), a risk-bearing community entered into voluntarily (lit. c) or in a situation of created risk (lit. d). An example of this position in law is a parent’s legal obligation for the duty of care towards their children or the provisions on the handling of hazardous substances. A contract only creates a guarantor position if the protection of the legal property concerned is also central to the contract. A situation of voluntarily entered danger is if several persons participate in a dangerous situation, trusting in their mutual assistance, as for example in a mountain expedition. As soon as there is a danger to legal interests, one is legally obligated to ensure that it does not materialize. The actual existence of a guarantor position can be disputed. If you have any questions concerning the guarantor position or a potential crime of omission, please contact one of our lawyers specializing in criminal law in St. Gallen, Zurich or Frauenfeld.

Fundamental to the crime of omission is the distinction between an act and an omission. Since the boundaries in real life are not necessarily explicit, their distinction is often difficult. In Switzerland, in order to distinguish, the subsidiarity theory is generally applied. According to this theory, an offense of omission can only be considered if there is no legally relevant causal action for the success of the offense.

Determining whether an offense of omission exists in an individual case can be difficult. Our attorneys for criminal law in Zurich, St. Gallen or Frauenfeld are happy to assist you.