Facts
The present case concerns the issue of forming a total sentence pursuant to Art. 49 para. 1 of the Swiss Criminal Code (StGB) in the case of retrospective concurrence. The appellant X. was punished by the President of the District Court of Thal-Gäu with a fine. The lower court additionally imposed a custodial sentence as an additional penalty under Art. 49 para. 2 StGB.Considerations
The Federal Supreme Court holds that the formation of a total sentence under Art. 49 para. 1 StGB is only possible if multiple similar penalties are imposed. In the case of dissimilar penalties, such as a custodial sentence and a fine, these must be imposed cumulatively, as the principle of aspiration only applies if multiple similar penalties are present. Accordingly, it is excluded to impose a custodial sentence as an additional penalty to a fine as the primary penalty. If the lower court is of the opinion that a custodial sentence is appropriate, it must impose this as an…