Facts
The appellant L. served several sentences for theft between 1974 and 1981. On February 14, 1986, he was convicted by the Criminal Court of Basel-Land for intentional grievous bodily harm and sentenced to 12 months' imprisonment, as he had stabbed a prostitute in the abdomen with a knife in 1985. On November 4, 1989, L. sought out a prostitute and inflicted 37 stab and cut injuries on her, resulting in her death. The High Court of the Canton of Zurich convicted him of murder on March 5, 1992 and sentenced him to 17 years' penitentiary and ordered an outpatient measure within the meaning of Art. 43 para. 1 of the Swiss Criminal Code during the execution of the sentence.
Following appeals for nullity by L. and the public prosecutor, the Federal Supreme Court set aside the decision and remanded the case for re-assessment to the High Court. On December 13, 1995, this court found L. guilty of murder and sentenced him to 16 years' penitentiary, again ordering an outpatient measure within the meaning of Art. 43 para. 1 of the Swiss Criminal Code.
Considerations
The Federal Supreme Court states that in the case of severely diminished responsibility bordering on irresponsibility, the guilt-adequate sentence can only be relatively low. However, the dangerousness of the offender must not be taken into account through an excessively long custodial sentence that is disproportionate to the guilt, but must be taken into account, if necessary, by imposing a detention order under Art. 43 para. 2 of the Swiss Criminal Code.
The lower court did not sufficiently consider the appellant's diminished responsibility bordering on irresponsibility and the limited recidivism risk. Therefore, the custodial sentence was set in violation of federal law. The Federal Supreme Court upholds the appeal on this…