Facts
The Federal Court decision deals with the question of whether there is real or unreal concurrence between an attempted homicide and the accompanying simple or serious bodily harm.
The facts concern a case in which the accused inflicted life-threatening injuries on the victim, but the attempt to kill did not succeed. The public prosecutor convicted the accused of attempted homicide as well as serious and simple bodily harm.
The accused appealed against this judgment and claimed that there was only unreal concurrence between the attempted homicide and the bodily harm, as the bodily harm was consumed by the attempted homicide.
Considerations
In its judgment, the Federal Court confirms the previous case law, according to which there is unreal concurrence between a completed intentional homicide and the accompanying simple or serious bodily harm. This means that the unlawfulness is settled by the conviction for completed homicide.
The Federal Court explains that this case law must also apply to the case of attempted homicide. For the attempt is designed as a facultative mitigating circumstance in the general part of the Criminal Code. It would therefore be misguided to assume a different rule of concurrence for the…