Facts
The appellant X. was convicted by the Cantonal Court of the Canton of Schwyz in appellate proceedings on 18 August 1988 of numerous offences, including grievous bodily harm under Art. 122 No. 1 para. 2 SCC, and sentenced to seven years’ imprisonment and a fine of 500 Swiss francs.
The conviction for bodily harm was based on the following facts: On 21 December 1984, X. went with his then wife to a bar in Lucerne. After an argument, X. retrieved a kitchen knife from their shared flat and inflicted a cut on his wife extending from the left corner of her mouth to the base of her ear. Although the wound healed well, it remained clearly visible and led to permanent impairment of her facial expression, particularly when smiling.
X. filed a federal nullity appeal with two main grounds of appeal: first, he challenged the qualification of the bodily harm as grievous bodily harm. Second, he argued that the lower court had failed to take into account a custodial sentence of nine months imposed in France (for burglaries committed in March/April 1986) as a prior conviction within the meaning of Art. 67 SCC and had not applied the rules on retrospective cumulative sentencing under Art. 68 No. 2 SCC. X. sought partial annulment of the contested judgment and referral of the matter back to the lower court for a new decision.
Considerations
I. Qualification of bodily harm as grievous bodily harm under Art. 122 No. 1 para. 2 SCC
The Federal Supreme Court confirmed the qualification of the bodily harm as grievous bodily harm. A significant but merely temporary disfigurement of the face is not sufficient to meet the statutory elements. What is decisive is whether the injury has lasting consequences. In the present case, the cut led to a permanently visible scar that impaired the victim’s ability to express herself facially. The victim’s subjective perception is irrelevant in this regard, as the perpetrator’s attitude may change. Moreover, the scar cannot be fully concealed cosmetically, so it remains visible even without make-up. The lower court was therefore correct to classify the offence as grievous bodily harm.
II. Prior conviction under Art. 67 SCC
The lower court found a prior conviction under Art. 67 SCC because X. had committed further offences within five years of serving a custodial sentence in France. The appellant argued that the conditions for a prior conviction were not met because some of the offences now under review had been committed before the French conviction. The Federal Supreme Court dismissed this ground of appeal. What matters is that X. committed further serious offences (robberies) after serving the French sentence, thereby meeting the conditions for a prior conviction.
III. Application of Art. 68 No. 2 SCC in case of foreign prior conviction
The key legal issue concerned the application of Art. 68 No. 2 SCC in the case of a foreign prior conviction. The lower court declined to apply the provision on the grounds that the offences underlying the French conviction did not fall within the territorial scope of the SCC. The Federal Supreme Court overturned this view and confirmed that Art. 68 No. 2 SCC also applies to foreign prior convictions, irrespective of whether the underlying offences fall within the territorial scope of the SCC. This follows from the wording of the provision, which contains no such restriction. Moreover, a contrary interpretation would unjustifiably privilege offenders whose offences were prosecuted abroad. Practical difficulties in obtaining foreign records…