Determination of the lex mitior when the perpetrator is liable, under the applicable law, on the one hand to a fine and, on the other hand, to a monetary penalty (with probation)

Facts

A. and B. acquired and installed gambling machines in a restaurant outside a licensed casino, in violation of the Gambling Act. They were sentenced by the District Court of Zurich to fines of CHF 2,000 (A.) and CHF 1,400 (B.) for contravention of the Gambling Act and Casinos Act (GamblA).

The Federal Gaming Board (CFMJ) appealed against this judgment. It argues that the facts should be classified as an offence under the new Gambling Act (GamblA 2017) and no longer as a simple contravention, which would result in a more severe monetary penalty than the fine.

Considerations

The Federal Tribunal confirms that the fine and the monetary penalty are not penalties of the same nature. When a contravention is transformed into an offence, the fine represents a more favourable penalty than the monetary penalty, regardless of the modalities of execution and the amount of the sanction.

According to the case law of the Federal Tribunal, to determine the lex mitior, one must first compare…