Facts
The respondent [T.], born in 1951, was convicted in 1972 for conscientious objection, as he had voluntarily and unpaid worked in a home for severely cerebral palsy children instead of military service. Subsequently, he also consistently refused to pay the military service exemption tax, for which he was sentenced to unconditional imprisonment several times.
The Judicial Commission of Gossau and the Cantonal Court of St. Gallen found [T.] guilty of culpable non-payment of the military service exemption tax as well as unauthorized transportation of persons on a cargo trailer, but sentenced him to a suspended fine, granting the mitigating circumstance of respectable motives pursuant to Art. 64 of the Swiss Criminal Code (StGB).
The Public Prosecutor's Office of the Canton of St. Gallen filed a federal nullity appeal, requesting the decision to be overturned and the case to be remanded to the lower instance for re-assessment without applying the mitigating circumstance of respectable motives.
Considerations
The Federal Supreme Court upholds its jurisprudence established in BGE 115 IV 65, according to which the mitigating circumstance of respectable motives pursuant to Art. 64 StGB cannot be granted to the obligated person who refuses to pay the military service exemption tax for pacifist reasons.
While there is a formal connection between the military service obligation and the obligation to pay the military service exemption tax, as the latter is levied as compensation for the non-rendered military service, the payment of the military service exemption tax is not a fulfillment of the military service obligation in another form, but merely a financial sacrifice demanded for reasons of justice and legal equality from those who do not or not fully comply with the statutory service obligation.
Even a partial reduction of…