Facts
K. is accused of having killed two previously unknown women in Zurich and Winterthur in 1987 by inflicting numerous stab wounds when they resisted his violent sexual advances, and of having raped two other women and coerced them into other indecent acts, also using a knife. He was in a state of diminished mental capacity during all the acts.
On March 8, 1990, the Criminal Division I of the High Court of the Canton of Zurich sentenced him, among other things, to life imprisonment in a penitentiary and a 15-year expulsion from the country for repeated murder, repeated rape, and repeated coercion to another indecent act.
K. has filed a federal nullity appeal, requesting that the judgment of the High Court be set aside and the case be remanded to the lower court for resentencing.
Considerations
Sentencing is governed by the principle of guilt. Pursuant to Art. 63 of the Swiss Criminal Code, the judge sentences within the applicable range for the relevant offense based on the offender's guilt, taking into account the motives, the prior criminal record, and the personal circumstances. The individual circumstances here may constitute aggravating or mitigating factors.
In the present case, the aggravating factor of the concurrence of criminal acts or provisions (Art. 68 of the Swiss Criminal Code) and the mitigating factor of diminished mental capacity (Art. 11 in conjunction with Art. 66 of the Swiss Criminal Code) must be considered.
The Federal Supreme Court states that the judge must consider the aggravating factor of the concurrence of criminal acts or provisions (Art. 68 para. 1 no. 1 of the Swiss Criminal Code) at least as an aggravating circumstance. At the same time, he must consider the mitigating factor of diminished mental…