Facts
The appellant B. killed his girlfriend on October 16, 1995 by shooting her in the head with an assault rifle and then stabbing her twice in the abdomen with a combat knife. The High Court of the Canton of Zurich convicted him of intentional homicide (as well as abuse and misappropriation of material) and sentenced him to 8 years of penitentiary and ordered an outpatient measure pursuant to Art. 43 of the Swiss Criminal Code as well as the execution of the custodial sentence.
The Public Prosecutor's Office of the Canton of Zurich filed a nullity appeal with the request to set aside the judgment and remit the case to the cantonal authority for a new decision, as the lower court had violated Art. 43 para. 1 no. 2 of the Swiss Criminal Code by not ordering the appellant's detention immediately.
Considerations
The Federal Supreme Court dismissed the appeal. It stated that while the appellant was in need of and capable of treatment, the prospects of recovery were considered good in the short or medium term. However, there was a risk in certain situations, so that the potential danger, despite treatment, had to be countered with protective measures. The appellant could therefore not be classified under the two perpetrator types mentioned in Art. 43 para. 1 no. 2 of the Swiss Criminal Code, for whom detention would be mandatory.
The lower court had assessed the…