Facts
The case concerns a complainant who was charged by the Canton of Basel-Stadt for several criminal offenses. The lower court had rejected a mitigation of sentence under Art. 64 para. 8 of the Swiss Criminal Code (StGB), as the ordinary statute of limitations had not yet almost expired. The complainant argued that the lower court had wrongly interpreted the "relatively long time" since the offenses.
The Federal Supreme Court set aside the judgment of the lower court and remanded the case for re-assessment. It clarified that for the question of whether the requirements of Art. 64 para. 8 StGB are met, the time of the appellate court's judgment is decisive, as the complainant had filed an appeal with devolutive and suspensive effect. Even if December 14, 1988 were considered the relevant time, it would be questionable whether a "relatively long time" had actually elapsed since the offenses (early 1980s).
Considerations
The Federal Supreme Court stated that for the application of Art. 64 para. 8 StGB, the decisive factor is whether the criminal prosecution is close to the ordinary statute of limitations. This is determined by the time of the judgment on the merits. Since the complainant had filed an appeal, the time of the appellate court's assessment was decisive.
The Federal Supreme Court found that the lower court had not made sufficient factual findings…