Facts
On 21 April 1991, A. attempted to overtake a vehicle on the cantonal road from Muri to Sins, but due to the presence of a vehicle coming in the opposite direction, the three vehicles crossed each other. A. collided with the vehicle she was trying to overtake, resulting in the death of her spouse and injuries to her three children.
The Muri district court sentenced A. to one month in prison with probation and a fine of 300 francs for negligent homicide and violation of road traffic regulations. The Argovie cantonal court of appeal dismissed the prosecution's appeal and confirmed the sentence.
The prosecution filed a nullity appeal, arguing that Article 66bis of the Swiss Criminal Code (SCC) does not allow for mitigation of the sentence, but only for waiver of prosecution or sentence.
Considerations
The Federal Court considered that Article 66bis SCC not only allows for waiver of prosecution or sentence, but also for mitigation of the sentence based on the severity of the consequences suffered by the perpetrator. The Court estimated that the sentence must be mitigated when the perpetrator has been directly and severely affected by the consequences of their act, but that waiver of any sentence does not appear justified.
The Court also considered that Article 66bis SCC is applicable even in cases of ideal concurrence between negligent homicide and a violation of…