Facts
The case concerns a complainant who was convicted by the President of the District Court of Thal-Gäu on November 3, 2009 with a base sentence. The lower court then imposed a custodial sentence as an additional penalty within the meaning of Art. 49 para. 2 of the Swiss Criminal Code (StGB) in addition to the fine as the base sentence.
The complainant appealed against this judgment to the Swiss Federal Supreme Court.
Considerations
The Federal Supreme Court held that the imposition of a cumulative sentence under Art. 49 para. 1 StGB is not possible for dissimilar penalties, such as a custodial sentence and a fine. Such penalties must instead be imposed cumulatively, as the principle of aspiration only applies when multiple similar penalties are imposed.
Accordingly, it is not possible to impose a custodial sentence as an additional penalty to a fine as the base sentence. In this case, only an additional fine would…