Criminal Law

Offences

principle of legality

NULLA POENA SINE LEGE

Serious offences

summary offences

severe nature, handled by district court

less severe, cantonal court

attempts & accessory not punishable

result offence

Conduct offence

focus on activity, regardless of result, e.g. theft

result important, e.g. manslaughter

CRIMINAL LAW

basic offence

qualified offence

preferential offence

e.g. theft

e.g. theft & battery

e.g. manslaughter

variant infanticide

Perpetratorship

no punishment without guilt

Milk and Water Judgement (NJ 1916, 681)

Motorcyclist's papers judgement (NJ 1950, 180)

Intent

Dolus

intent with purpose

awareness of high degreee of probability

dolus eventualis

Subjective components

Negligence

Culpa

Considerable Chance judgement

unconscious culpa

perpetrator does not realise recklessness

conscious culpa

p. knows risks, but hopes for best

PORSCHE CASE

-> differentiation

Justifications

GENERAL CONDITIONS

unlawfulness

Blameworthiness

self defense art. 41 para. 1 Criminal Code

FORCE MAJEURE AS NECESSITY, art. 40

Compliance with authorized official order art. 43 (1)

Performance of a legal duty art.42

Absence of substantive unlawfulness, UNWRITTEN

DEFENSES

Excuses

DURESS

Unreasonable use of self-defense art. 41 para. 2

Compliance with unauthorized official order art. 43 (2)

Mental disorder,

art. 39

Absence of guilt, UNWRITTEN

subsidiarity

proportionality

s.d. must be necessary! No reasonble alternative

may still rely on art. 41 para. 2, if unproportionate

Optician Case -> conflict of duties: moral vs. law, same requirements as s.d.

counterparts

"external force the suspect was not able to resist nor needed to resist"

Classification: What would a reasonable person do?

Veterinary Judgement vaccination by violating act

"violent emotion", attack

"believed [...] order was issued by the proper authority"

Milk and Water Judgement

The trial

charge list

includes:

-offence

-time & place

-violated statutes

art. 261 para. 1

one charge sheet per offence

alternative charge lists for offences, which exclude each other

Preliminary questions of art. 348 & 349 Criminal Procedure Code

decision model

1. Writ of summons valid? art. 261 para. 1

3. Prosecution Service admissable?

-Defendant not deceased (art. 69 PC)

-Charge not extinguished by limitation? (art. 70 PC.)

-No double jeopardy =ne bis in idem? (art. 68 PC)

-Defendant not under 12 years?

2. Judge / court competent?

YES

YES

YES

Fundamental questions art. 350

CONTINUE WITH ...

summons null and void

Lack of jurisdiction

Prosecution barred, inadmissable.

NO

NO

NO

NO