Facts
The case concerns Giovanni Ferro, who together with Erich Peter on March 11, 1962 forcibly dragged the 1940-born X. into a car and then raped her at a remote location. The Criminal Chamber of the Canton of Thurgau convicted Ferro of aggravated deprivation of liberty (Art. 182 para. 2 no. 1 SCC), aggravated rape (Art. 187 para. 2 SCC) and aiding and abetting to a term of imprisonment of six years in a penitentiary.
Ferro filed a nullity appeal on the grounds that the offense of deprivation of liberty is subsumed in that of rape and that the latter is only fulfilled in the form of Art. 187 para. 1 SCC.
Considerations
The Court of Cassation first found that the deprivation of liberty under Art. 182 para. 2 no. 1 SCC was fulfilled, as Ferro dragged X. against her will into the car and prevented her from getting out during the drive.
Regarding the rape, the Court of Cassation concluded that there is no true concurrence of laws between Art. 182 and Art. 187 SCC. The two offenses were not fulfilled by a single act, as the rape acts only began after the completion of the deprivation of liberty. Therefore, there is a real concurrence under Art. 68 no. 1 SCC.
However, Ferro did not fulfill the elements of aggravated rape…