Conversion of a fine under the Federal Administrative Criminal Law into imprisonment

Facts

The Federal Customs Administration (EZV) fined X. 3,600 Swiss francs for tax evasion of customs duties and value-added tax. Since the fine could not be collected, the EZV applied to the Criminal Court of Basel-Stadt for its conversion into a substitute custodial sentence pursuant to Art. 10 VStrR.

The Criminal Court of Basel-Stadt reduced the fine to 1,920 Swiss francs and allowed X. to pay it in 24 monthly installments of 80 Swiss francs. In the event of culpable non-payment, a substitute custodial sentence of 20 days was imposed. The EZV appealed against this decision.

The Court of Appeal of the Canton of Basel-Stadt dismissed the appeal. Thereupon, the EZV filed a criminal appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court decided that the conversion of a fine for an infringement within the scope of the Federal Act on Administrative Criminal Law continues to be carried out according to Art. 10 VStrR even after the entry into force of the new General Part of the Criminal Code. Accordingly, the fine is converted by the judge into imprisonment insofar as it cannot be collected.

The Federal Supreme Court justified this by stating that although Art. 333 para. 3 of the Criminal Code declares the provisions of Art. 106 and 107 of the Criminal Code applicable to misdemeanors of ancillary criminal law, Art. 10 VStrR as a special regulation in administrative criminal law still takes precedence. Even if the legislator may have overlooked the reference to Art. 10 VStrR in Art. 333 para. 3 of the Criminal Code, this does not mean that this provision is no longer applicable.

Furtherm…