Facts
The appellant Z. was convicted, among other things, for heavy and continuous drug use. The lower court had classified his capacity as diminished to a mild to moderate degree and taken this into account as a mitigating factor in sentencing. However, a severe drug addiction and significantly diminished capacity were denied, as no serious withdrawal symptoms occurred in custody and Z. was able to consume hashish and alcohol on a trip.
Z. filed a nullity appeal against this judgment, as the lower court had assessed the capacity without a psychiatric expert opinion, although according to Art. 13 para. 1 of the Swiss Criminal Code (StGB), an expert opinion must also be obtained in case of doubts about the degree of diminishment.
Considerations
The Federal Supreme Court upheld the appeal. It stated that the lower court should not have determined the degree of diminished capacity without an assessment. Given the appellant's massive drug use, a significant diminishment of capacity cannot be ruled out from the outset.
Furthermore, the lower court had only described the degree of diminishment in general and vague terms, without going into the mental state of the appellant in…