Facts
On 21 December 1998, the defendant, X., had a victim abducted by henchmen in order to extort a ransom of 5 million Swiss francs from his family. The victim was held captive for 45 hours in an abandoned barn, handcuffed, hooded and subjected to repeated death threats. The kidnappers forced the victim to reveal the PIN codes for his bank cards, enabling fraudulent withdrawals of several thousand Swiss francs. The victim’s family, including his mother, was contacted repeatedly and threatened with death or mutilation if the ransom was not paid. A first instalment of the ransom (500 000 Swiss francs) was paid, after which the balance (4 500 000 Swiss francs) was demanded under threat of executing the victim.
The defendant was convicted at first instance by the Criminal Court of the Lausanne District on 27 March 2001 to 9 years’ imprisonment for aggravated kidnapping (Art. 185 para. 2 SCC), aggravated extortion (Art. 156 para. 3 SCC), fraudulent use of a computer (Art. 147 SCC), breach of trust (Art. 138 para. 1 SCC) and theft (Art. 139 para. 1 SCC). The Criminal Cassation Division of the Vaud Cantonal Court upheld this judgment on 20 December 2001, before a co-defendant was released from payment of compensation for moral harm, resulting in a partial reform of the initial judgment.
Psychiatric assessments also revealed in the defendant a narcissistic personality disorder with antisocial tendencies, resulting in a moderate reduction in his capacity to determine his actions in light of the unlawful nature of his conduct. Despite this assessment, the sentence was reduced by 40 % without detailed justification.
Lastly, the court awarded compensation for moral harm to the victim (60 000 Swiss francs), to his parents (60 000 Swiss francs each) and to his sister (30 000 Swiss francs), the defendant and nine co-defendants being jointly and severally liable for payment of these amounts.
Considerations
The Federal Supreme Court examined several grounds raised by the defendant, including the application of aggravated kidnapping (Art. 185 para. 2 SCC). The defendant contested this qualification on the ground that the death and mutilation threats had been directed exclusively at the victim’s family and not at the victim himself. The Federal Supreme Court recalled that Art. 185 para. 2 SCC does not require that the threats be directed at the hostage, only that they be intended to compel a third party to act or refrain from acting. In this case, the pressure exerted on the victim’s family, kept in a state of anxiety for 24 hours with repeated threats of death or mutilation, far exceeded that resulting from the basic offence. The defendant, as the mastermind, was aware of and accepted this pressure as a necessary means of obtaining the ransom. Thus, the conviction for aggravated kidnapping is in accordance with federal law.
With regard to Art. 147 SCC (fraudulent use of a computer), the defendant argued that this offence was absorbed by the extortion (Art. 156 SCC). The Federal Supreme Court recalled that extortion and fraudulent use of a computer are separate offences, but that their concurrence depends on the specific circumstances. In this case, the fraudulent use of the extorted bank cards was necessary to commit the extortion, which is only consummated when the financial loss occurs. Thus, the offence under Art. 147 SCC was absorbed by the extortion, and the concurrent conviction violates federal law.
The Federal Supreme Court also examined the sentence reduction for diminished responsibility. Although the cantonal court had found a moderate reduction in the defendant’s responsibility, it did not justify…