Facts
The appellant B. was convicted by the High Court of the Canton of Bern for driving under the influence of alcohol and loss of control of the vehicle. The High Court considered a moderate degree of diminished capacity and imposed a prison sentence of 50 days. B. filed a nullity appeal against this judgment.
In its first judgment of August 23, 1990, the High Court had sentenced B. to a prison sentence of two months without considering diminished capacity. The Federal Supreme Court quashed this judgment and remanded the case to the High Court for re-evaluation.
Considerations
The Federal Supreme Court stated that according to Art. 11 of the Swiss Criminal Code, the judge must mitigate the sentence if the offender had diminished capacity. However, the judge is bound by the statutory minimum of the respective type of punishment.
The High Court had indeed assumed a moderate degree of diminished capacity of the appellant. However, it did not fully consider this mitigation of guilt in sentencing, but limited the mitigation by…