Facts
On 20 September 1990, Mr. H.'s wife, S. H., filed a divorce petition. The spouses reached an agreement in the context of the procedure for protecting the marital union, which settled the financial consequences, but not the custody of their common child, born in May 1984. The spouses agreed to exercise joint custody of the child, alternating every fifteen days. On 5 December 1990, Mr. H. returned the child to its mother, but after an altercation, S. H. decided to return the child to him on 10 December, before the end of the period allotted to her. Mr. H. then took the child to Paris, and then to Algeria, on 13 December 1990. Since then, S. H. has had no contact with her son.
On 8 February 1991, S. H. filed a criminal complaint, and Mr. H. was arrested on 13 February 1991. The investigating judge in the divorce case decided that the child would be placed in the mother's custody for the duration of the divorce proceedings, and ordered Mr. H. to return the child to its mother within ten days, under penalty of sanctions. Mr. H. was found guilty of qualified abduction and removal of a minor, as well as violation of the judge's decision, and was sentenced to three years' imprisonment.
Considerations
The Federal Court examined the question of whether the abduction of a child for more than ten days constitutes a qualified offense under Article 184, paragraph 4, of the Swiss Criminal Code (SCC). The court considered that abduction is an offense that can be qualified if it lasts more than ten days, regardless of whether it also constitutes a deprivation of liberty.
The court analyzed the preparatory work of the law and found that the legislature intended to qualify abduction as a serious offense if it lasted more than ten days. The court also examined the…