Facts
The appellant (X.) lived separately from his former partner (A.). The two children they had together lived with the mother until 15 October 2011, with both parents holding joint parental responsibility. On that date, X. collected the children under his right of access and travelled with them to Nigeria without the knowledge or consent of the mother or the guardian. There, he left them with relatives, intending to raise them there until the Swiss authorities granted him sole parental responsibility.
X. was arrested on 30 October 2011. On 25 November 2011, sole parental responsibility was transferred to the mother, which was communicated to X. on 13 December 2011. Despite this knowledge, he refused to arrange for the children’s return, even though he was able to do so.
The Higher Court of the Canton of Zurich convicted X. on 13 January 2014 of multiple qualified deprivation of liberty and multiple abduction of minors and sentenced him to seven years’ imprisonment. X. then filed an appeal in criminal matters with the Federal Supreme Court, seeking either an acquittal or the quashing of the judgment and a referral back to the lower court.
Considerations
The Federal Supreme Court first examined the offence of deprivation of liberty under Art. 183 para. 1 SCC. It held that this offence must be interpreted restrictively and is only fulfilled if a person is completely prevented from exercising their physical freedom of movement. In the case of children who are denied access to their mother’s place of residence, such a deprivation of freedom of movement does not exist as long as they are generally able to move freely. The lower court had argued that the children (aged 3½ and 5) were unable to move without the help of adults and that their freedom of movement was therefore restricted. The Federal Supreme Court disagreed with this view and stated that freedom of movement is not already negated by the fact that a particular place cannot be reached. Rather, a comprehensive deprivation of freedom must exist, such as by locking up or detaining the children. Since the children in Nigeria were not locked up and were able to move freely, the objective elements of deprivation of liberty were not met. The conviction for deprivation of liberty was therefore quashed.
The Federal Supreme Court then examined the alternative offence of abduction under Art. 183 para. 2 SCC. This requires that a person restricts the personal freedom of a child who is incapable of judgment, unable to resist, or under 16 years of age by taking them to another place and thereby gaining control over them. The lower court had rejected this offence on the grounds that X. was still the holder of joint parental responsibility at the time of the offence and was therefore entitled to determine the children’s place of residence. The Federal Supreme Court clarified its previous case law and stated that the parents’ right to determine the child’s place of residence is not absolute. If taking the child to another place severely violates the child’s interests and well-being, the act can no longer be justified by the right to determine the place of residence. This is particularly the case when the child is torn from their familiar surroundings and taken to a foreign country to unknown persons, without contact with the mother or other reference persons. Such an act constitutes a flagrant violation of the child’s best interests and fulfils the offence of abduction.
The Federal Supreme Court emphasised that the child’s best interests are not relevant to the assessment of abduction, as this is…