Facts
[R.], born on March 7, 1964, was sentenced to 15 months of imprisonment for breach of trust, fraud, and forgery of documents. The court of first instance did not order placement in an educational institution for work and did not collect information from third parties regarding R.'s behavior, education, and situation. [R.] filed an appeal for nullity, claiming that Art. 100 of the Swiss Criminal Code (CP) had been violated.
The Federal Tribunal dismissed the appeal for nullity.
Considerations
According to Art. 100 para. 2 CP, the judge must obtain information on the offender's behavior, education, and situation and, if necessary, request reports and expert opinions. Although the French text of this provision does not expressly mention the requirement of necessity for the information, the German and Italian texts clearly indicate that this requirement also applies to the information.
The case law has noted this divergence between the texts but has not ruled on the determining text, considering that the judge had sufficient information in the cases submitted to him. The doctrine has also not taken a unanimous position on this issue.
In the present case, the judge obtained information from the appellant…