Facts
On 23 August 1996, around 2:05 pm, S. assisted an elderly and mobility-impaired man in boarding the tram at Zurich's main station. Taking advantage of this opportunity, S. stole the man's wallet from his back pocket. On 17 October 1996, S. was sentenced by a single judge of the District Court of Zurich for theft to 3 months' imprisonment with probation and a 4-year probation period, as well as a 3-year expulsion from the territory. On appeal by S. and the public prosecutor, the Cantonal Court of Zurich decided on 16 July 1997 not to consider the indictment, considering that the theft committed by S. constituted a minor property offence within the meaning of Art. 172ter para. 1 SCC and that a conviction was not possible due to the lack of a complaint. The public prosecutor filed a federal nullity appeal to have this decision annulled and the case referred back to the Cantonal Court.Considerations
The DFC considers that the theft committed by S. is punishable under Art. 139 no. 1 SCC (theft). Art. 172ter para. 1 SCC, which provides for a lighter sentence for minor property offences, is only applicable if the defendant had the intention from the outset to take possession of only a modest property value. In the present case, the Cantonal Court did not conclusively establish what specific booty S. expected. However, the DFC considers that when a pickpocket steals a wallet from an elderly person…