Facts
On October 17, 2005, the Federal Customs Directorate convicted X. of a customs offense and a violation of the Value Added Tax Act, and imposed a fine of 1,000 Swiss francs. Since the fine was neither contested nor paid, the Federal Customs Administration applied to the Office of the Attorney General of the Canton of Zurich on March 1, 2007, to convert the fine into 33 days of substitute custodial sentence.
The Single Judge for Criminal Matters of the District of Winterthur imposed on X. on May 4, 2007, a substitute custodial sentence of 10 days instead of the fine. The Federal Customs Directorate appealed against this order, which the High Court of the Canton of Zurich dismissed on June 7, 2007.
By way of criminal complaint, the Federal Customs Administration requested the annulment of the High Court's decision and the conversion of the fine into 33 days of substitute custodial sentence.
Considerations
The Federal Supreme Court states that new law must be applied for the conversion of the old-law fine. According to Art. 388 CC, old-law judgments are generally to be executed according to old law. Since the conversion of a fine into imprisonment is not merely the execution of the criminal judgment, but a supplementary decision on the merits of the fine decision, Art. 2 CC is not applicable.
Under old law, Art. 10…