Facts
On February 27, 1992, the High Court of the Canton of Zurich found C. guilty of receiving stolen goods and a crime against the Narcotics Act, and sentenced him to 18 months' imprisonment, suspended with a probationary period of three years. The Public Prosecutor's Office of the Canton of Zurich filed a federal nullity appeal, requesting that the contested decision be set aside due to a violation of Art. 63 of the Swiss Criminal Code (StGB) and that the case be remanded to the lower court for a new determination of the sentence.
Considerations
The Federal Supreme Court dismissed the appeal. It stated that the lower court had rightly taken into account the 18-month limit for granting suspended sentences under Art. 41(1) StGB in determining the sentence. The Federal Supreme Court had previously pointed out that there is a substantive connection between sentencing and the question of suspended sentences. If a custodial sentence of not significantly more than 18 months is considered and the other requirements for a suspended sentence are met, the judge must examine whether the execution of an unconditional custodial sentence would be contrary to the purpose of crime prevention. In this case, he must take the offender's personal situation into account as a mitigating factor.
The sentencing by the lower court, which resulted in a sentence of 18 months' imprisonment enabling a suspended sentence, is therefore not…