First-time imposition of an outpatient measure by the Court of Appeal violates the prohibition on aggravation

Facts

The facts can be summarized as follows

A. and his former wife committed serious armed robberies on 4 March 2014 in U. and on 24 July 2015 in V. The Criminal Court of the Cantonal Court of Lucerne sentenced A. on 31 January 2018 to 13 years and 9 months' imprisonment for multiple aggravated robberies, deprivation of liberty and other offenses, but refrained from ordering the requested outpatient measure under Art. 63 of the Swiss Criminal Code (SCC).

A. appealed against the judgment, and the public prosecutor filed a cross-appeal. On 2 July 2019, the Cantonal Court of Lucerne found A. guilty and sentenced him to 11 years and 3 months' imprisonment, but also ordered an accompanying outpatient measure under Art. 63 SCC.

A. filed a criminal complaint against the imposition of the outpatient measure.

Considerations

The Federal Supreme Court partially upholds the complaint. It states that the first-time imposition of an outpatient measure by the Court of Appeal violates the prohibition on aggravation under Art. 391 (2) of the Swiss Criminal Procedure Code (CPC).

The Criminal Court had refrained from ordering an outpatient measure, contrary to the public prosecutor's request. Since the public prosecutor had not renewed the request for such a…