Facts
The present judgment concerns an appeal for nullity filed by X., a Spanish national, against a judgment convicting him for the abduction of his 10-month-old son Z. This occurred on October 10, 1997. At that time, X. and his wife Y. were living separately without any court decision having been made regarding parental authority and custody of the child, who was in fact living with his mother.
X. went to his in-laws' home, threatened his mother-in-law, and took Z. to Spain. After three weeks, the child was placed in an orphanage. The parties finally signed a court agreement allowing Z. to return to Switzerland on November 6, 1997. Y. had filed a complaint for child abduction and kidnapping, which she withdrew on April 15, 1998.
Considerations
The Federal Tribunal considers that the appellant, as a co-holder of parental authority, had the right to determine the place of residence of his son. Therefore, by taking Z. to Spain without the agreement of his wife, he did not violate the legal interest protected by Art. 183 para. 2 of the Criminal Code, namely the child's freedom. The Federal Tribunal thus modifies its previous case law, which provided for an exception when the child's displacement was not compatible with his well-being and interests.
The Federal Tribunal considers that the child's well-being is not a relevant criterion in matters of abduction. Only the displacement of a child by a parent who does not have custody rights can be punished under Art. 183 para. 2 of the Criminal Code. A displacement carried out by a parent who holds parental authority and custody rights does not fall under this provision, even if this displacement does not serve the child's best interests.
However, the…