Facts
On August 31, 1953, Dr. B. in his medical practice in Zurich performed a curettage of the uterus on M. L., who was then in the second month of pregnancy. He had agreed to perform this procedure only on the condition that he be paid CHF 700 in advance. He had accepted the money in the knowledge that the unmarried and financially modest M. L. was in a state of helplessness and despair and was doing everything to induce an abortion.
On November 19, 1955, the Assize Court of the Canton of Zurich convicted B. of abortion and usury and sentenced him to a one-year suspended prison sentence and a fine of CHF 500.
The convicted person and the Public Prosecutor's Office of the Canton of Zurich filed a nullity appeal against this judgment.
Considerations
The Court of Cassation decided that the appellant had committed usury within the meaning of Art. 157 para. 1 of the Swiss Criminal Code. Medical services constitute pecuniary benefits, the objective value of which can be determined based on the usual fees. The financial advantage of CHF 700 that the appellant had granted himself was clearly disproportionate to the objective value of his service, which was a maximum of CHF 250. Furthermore, M. L. was in a state of distress, which the appellant had exploited.
However, the Court of Cassation overturned the judgment with regard to the suspended sentence. The lower court had granted the suspended sentence, although the appellant had…