Facts

The jury court of the Canton of Zurich convicted on 18 February 2008 the respondent X. of premeditated homicide of her daughter to 6 years’ imprisonment, with credit for time served in police and investigative custody. The co-defendant Y. was sentenced to 12 years’ imprisonment. The judgment against Y. has since become final.

The Office of the Attorney General of the Canton of Zurich filed an appeal in criminal matters and contested the sentencing of X., in particular the consideration of diminished culpability. It requested that the matter be remitted to the jury court for a new decision.

The respondent sought dismissal of the appeal and filed a request for free legal aid. The lower court declined to submit a response. The Federal Supreme Court heard the appeal in a public session.

Considerations

The Federal Supreme Court examined the appeal filed by the Office of the Attorney General and thoroughly addressed the question of how diminished culpability is to be considered in sentencing. The point of departure is the objective gravity of the act, which determines the subjective culpability for the act. In this context, the diminished culpability of the offender must be expressly set out in the judgment, in particular the extent to which it reduces culpability. The overall assessment of the culpability for the act must be stated in order to enable a review of the appropriateness of the sentence.

Previous case law held that the baseline sentence derived from the elements of the offence was to be reduced in accordance with the degree of diminished culpability. The Federal Supreme Court has now clarified this practice and emphasised that diminished culpability does not necessarily lead to a linear reduction of the sentence. Rather, the offender’s culpability must be assessed in light of all the circumstances. A purely mathematical reduction of the sentence is inconsistent with the system and unduly restricts the judge’s discretion.

In the present case, the lower court classified the objective culpability of the respondent as very serious and assumed a baseline sentence of 16 years. Taking into account a medium degree of diminished culpability, the respondent…