Absence of Criminal Record and Sentencing

Facts

The present judgment concerns a criminal appeal filed by A.X. against the Attorney General of the Canton of Berne. The main issue concerns the consideration of the absence of a criminal record in the determination of the sentence.

Considerations

The SCC has revised its previous case law, according to which the absence of a criminal record had to be systematically considered as a mitigating factor in the determination of the sentence. Henceforth, the absence of a criminal record is considered a neutral element that does not in itself justify a reduction in the sentence.

However, the SCC acknowledges that the absence of a criminal record may exceptionally be taken into account in the assessment of the offender's personality, as a mitigating circumstance, but on the condition that their law-abiding behavior is qualified as extraordinary. This condition must be applied with restraint, in order to avoid any risk of unequal treatment.

In…