Facts
K. and B. are accused of having committed the offense of continued or simple economic intelligence service within the meaning of Art. 273 of the Swiss Criminal Code (StGB) during the period from mid-July to October 12, 1973. The Criminal Court of the Canton of Basel-Landschaft decided on September 7, 1981 not to proceed with the case due to the expiration of the statute of limitations. The High Court overturned this decision on appeal by the public prosecutor's office and remanded the case to the Criminal Court for adjudication.
K. and B. are filing a nullity appeal with the request to set aside the judgment of the High Court and to remand the case to the lower instance for discontinuation of the proceedings.
Considerations
The Federal Supreme Court decides that for the determination of the statute of limitations under Art. 70 of the Swiss Criminal Code, the penalty generally threatened by law for the offense in question is decisive, and not the penalty that the perpetrator has incurred according to the principles of sentencing in the individual case.
Art. 273 para. 3 of the Swiss Criminal Code threatens economic intelligence service with "imprisonment, in serious cases with penitentiary". The Federal Supreme Court notes that the different threat of punishment here is not linked to a change in the elements of the offense, but that it is a matter of sentencing. Whether a case is serious or not is therefore not a question of the elements of the offense, but of sentencing.
The Federal Supreme Court considers it correct that the aggravating and mitigating factors of the…