Facts
The complainants 1 (Public Prosecutor’s Office of the Canton of Aargau) and 2 (Y., the father of the child) filed an appeal against the judgment of the Higher Court of the Canton of Aargau dated 5 September 2014. This judgment had overturned the first-instance judgment of the District Court of Brugg dated 3 December 2013 and discontinued the proceedings against the respondent (X., the mother of the child). In the first instance, the respondent had been convicted of false imprisonment pursuant to Art. 183 para. 1 first sentence SCC and wrongful removal of a minor pursuant to former Art. 220 SCC (in the version applicable until 30 June 2014) to a custodial sentence of three years, with pre-trial detention and security detention credited.
The facts concern the joint son Z. (born on 17 December 2005) of the respondent X. and the complainant Y. In the summer of 2010, X. travelled with the consent of Y. with the son to Ukraine to temporarily place him with the maternal grandmother. The parents agreed that Z. was to return to Switzerland on 18 August 2010. When Z. did not return in August 2010, X. convinced Y. to extend the child’s stay until the end of 2010, as she was unable to care for the child due to her dissertation and employment at ETH Zurich. After this period expired, X. refused to return the child to Switzerland and left Ukraine in April 2011 from a psychiatric clinic. Y. travelled to Ukraine to retrieve his son but was denied access by the grandmother on X.’s instructions. On 16 January 2013, X. was remanded in pre-trial detention. The complainant Y. filed a criminal complaint against X. for wrongful removal of a minor on 4 March 2011. On 25 January 2013, Y. again filed a criminal complaint for all relevant offences.
The District Court of Brugg convicted X. on 3 December 2013 of false imprisonment and wrongful removal of a minor. The Higher Court of the Canton of Aargau overturned this judgment and discontinued the proceedings, as it denied Swiss jurisdiction and also assumed that a criminal complaint was lacking for the period after 11 October 2011. The complainants appealed against this judgment.
Considerations
1. International jurisdiction of Switzerland
The Federal Supreme Court confirmed Swiss jurisdiction pursuant to Art. 3 para. 1 SCC and Art. 8 para. 1 SCC. It found that the respondent X., during her presence in Switzerland (until April 2011), by her culpable omission – the refusal to return the son Z. to Switzerland – fulfilled the elements of the offence of false imprisonment pursuant to Art. 183 para. 1 SCC and wrongful removal of a minor pursuant to former Art. 220 SCC. The place of commission was in Switzerland, as X. issued the instruction from there not to return the son. Moreover, the complainant Y. was entitled, as the holder of parental authority, to determine the child’s place of residence and had not consented to the stay in Ukraine. Swiss jurisdiction is also justified by the principle that, in the absence of a close connection to Switzerland, international jurisdiction must still be affirmed to avoid negative competence conflicts (BGE 133 IV 171 para. 6.3).
2. No significance of the child’s habitual residence
The lower court had denied Swiss jurisdiction on the grounds that the child’s habitual residence was in Ukraine. The Federal Supreme Court rejected this argument. It emphasised that the provisions of the Hague Convention on the Protection of Children (HCPC) (in particular Art. 5 para. 1 and Art. 7 para. 1 lit. a and b HCPC) regulate only civil jurisdiction for protective measures concerning the child, not criminal prosecution for removal offences. Swiss criminal jurisdiction arises from the territoriality principle (Art. 3 para. 1 and Art. 8 para. 1 SCC).
3. Continuing offence and time limit for criminal complaints
The Federal Supreme Court confirmed that wrongful removal of a minor pursuant to former Art. 220 SCC constitutes a continuing offence. The time limit for filing a criminal complaint begins to run only upon termination…