-
» Excellent «
In certain circumstances, ‘doing nothing’ is punishable. Art 11 of the Swiss Criminal Code specifies when ‘doing nothing’ leads to a penalty. This article lists the conditions under which the law makes the omission to act punishable.
Offenses of omission are divided into genuine offenses of omission and non-genuine offenses of omission. A true crime of omission is one in which a particular failure to act is explicitly covered by the offense itself. An example of this is abandonment as defined in Art. 127 SCC; exposing a helpless person under one’s protection or care to a life-threatening danger. A criminal offense- which is in and of itself active- is only actualized by the omission to act. By the omission to act, the perpetrator being as culpable as if he would have actively committed the offence (Art. 11 SCC). Our team of lawyers for criminal law in St. Gallen, Zurich and Frauenfeld can help you with the identification of a crime of omission.
First of all, it must be clarified whether the situation concerns an act or omission. In practice, the principle of subsidiarity is applied. An act is defined by any externally discernible human action (including the expenditure of energy, performance of a bodily movement) causally expressed and causing a factual result. Then it must be determined whether this action correlates to an offence, is illegal and culpable. Determining whether an act is one of omission is only necessary if the act does not give rise to criminal liability or if the omission possibly gives rise to more extensive liability. Lawyers for criminal law in Zurich, Frauenfeld and St. Gallen can answer the question of whether there was a concrete act of doing or omission.
An omission is only punishable if there is a duty to act, forcing the person into the so-called guarantor position (Art. 11 para. 2 SCC). 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). Even if a statutory provision stipulates a duty to avert danger, this does not automatically give rise to a guarantor status under criminal law. An exception to this is the guarantor status of parents under the law towards their minor children (Art. 301 f. SCC). Otherwise, the derivation of a guarantor status from a legal regulation must always be specifically justified, according to the concrete circumstances. A guarantor position established from contract is when a contract sets out the protection of legal interests as the main obligation (e.g. babysitter, mountain guide). A voluntarily entered risk-bearing community is the understanding that one agrees to a joint undertaking with risk, but that the mutual participation better helps to master these dangers (e.g. Himalaya expedition). According to the Ingerenzprinzip, the person who creates or increases the risk to another’s legal interest is a guarantor. The latter must take all reasonable steps to prevent the danger from becoming actualized in a violation (the so-called danger principle). The definition of a guarantor position can be difficult to identify in certain circumstances. Further information is readily provided by our attorneys for criminal law in Frauenfeld, Zurich and St. Gallen.
The perpetrator did not actually carry out the possible act of prevention. There must have been an action which the perpetrator could have taken in order to avert the success of the risk event. Here, the individual capabilities of the perpetrator must be taken into account. The law cannot demand the impossible from anyone.
In addition, there must be a hypothetical causality between the omission to act and the success of the risk. The formula for establishing natural causality fails in the case of the crime of omission, since no act was ignored. However, it must be examined whether the success would also have occurred if the required action had interfered. According to the theory of probability, the success of the risk can only be attributed to the offender if the required action would have almost certainly averted its success (a probability bordering on certainty). The risk reduction theory states that success is attributable to the perpetrator if the required action would have significantly reduced the risk to occur. Lawyers specialized in criminal law can determine which of these theories influences which aspect of the assessment of a crime.
Finally, the allegation must be identified (Art. 11 para. 3 SCC). A person can be held liable under Article 11, if they fail to comply with a duty to act and if, on the basis of the elements of the offence concerned, their conduct is as culpable as if they had actively committed the offence.
Furthermore, the subjective facts (such as the intent), the illegality and the culpability must be established. If these criteria are met according to the SCC, the offender is guilty of the offense of omission. Information on the other requirements can be obtained from lawyers for criminal law in St. Gallen, Zurich and Frauenfeld.