Analogous Application of Art. 43 Paras. 2 and 3 of the Swiss Criminal Code to the Outpatient Treatment of Alcoholics and Drug Addicts pursuant to Art. 44 of the Swiss Criminal Code

Facts

The case concerns a measure pursuant to Art. 44 of the Swiss Criminal Code (Treatment of Alcoholics and Drug Addicts), in which the Judicial Directorate filed a report and application in 1990 pursuant to Art. 43 No. 3 Para. 2 of the Swiss Criminal Code. This provision actually refers to measures for the mentally abnormal. The question therefore arises whether this analogous application to alcoholics and drug addicts was correct.

The prevailing doctrine and case law consider an analogous application of Paras. 2 and 3 of Art. 43 No. 3 of the Swiss Criminal Code to the outpatient treatment of alcoholics and drug addicts to be permissible if the measure proves to be inexpedient or dangerous for others. Only STRATENWERTH rejects such an analogous application and wants to consider only the subsequent execution of the suspended sentence.

Considerations

The court concludes that the provisions of Art. 43 No. 3 Paras. 2 and 3 of the Swiss Criminal Code can generally also be applied to outpatient treatment under Art. 44 of the Swiss Criminal Code. This corresponds to the intention of the legislator, who in the message on the revision of the Swiss Criminal Code provided for an analogous regulation as in Art. 43 of the Swiss Criminal Code.

Whether this analogous application also provides a sufficient legal basis for ordering the subsequent commitment to an institution or…