Facts
On 14 February 1991, around 4:30 p.m., two plain-clothes investigators of the Zurich City Police, A. and B., in their unmarked service vehicle, went to a property at Bremgartnerstrasse in Zurich to arrest a person they suspected was there. As the officers approached the front door, a man and a woman were just leaving the house. Officer A. immediately recognised the man as the respondent X., who had been wanted for arrest in the Swiss Police Gazette a few weeks earlier on suspicion of embezzlement. X. was ordered to follow the officers to the police station. He pretended to have left a folder containing court files in his companion’s apartment and accompanied the officers into the apartment to look for it. After an unsuccessful search in the apartment and in his companion’s vehicle, all three returned to the apartment. Finally, they left the apartment to go to the service vehicle.
As Officer A. crossed the street to get into the passenger side of the service vehicle, X. reached Officer B. at the driver’s side. With his left hand, X. performed a loading motion on a semi-automatic pistol "Beretta" he was carrying in his right coat pocket, quickly drew the weapon and fired a shot at B. from less than one metre away without aiming the gun. Officer B. unsuccessfully tried to stop X. from firing by shouting "(X.), don’t do it." The bullet hit B.’s jacket and the fur-lined jacket underneath. X. then fired a second shot from less than one metre away, standing directly in front of B. and aiming the gun at B.’s upper body. The bullet pierced B.’s lung, injured the liver and exited through B.’s back. B.’s life could only be saved thanks to immediate medical treatment. B. was hospitalised until 6 March 1991 and was unable to work until early May 1991, but suffered no permanent damage.
The respondent X. fled on foot. Four days after the shooting, on 18 February 1991, he stole a passenger car in Zurich. A month later, on 18 March 1991, he was involved in a police checkpoint on the Sattelegg/SZ while driving this vehicle. He evaded the checkpoint by fleeing, during which he repeatedly committed serious traffic violations, including speeds of up to 160 km/h in a zone with a speed limit of 80 km/h, disregarding red traffic lights and dangerous overtaking. He was finally arrested in Richterswil.
The jury court of the Canton of Zurich found X. guilty on 24 September 1993 of attempted premeditated homicide (Art. 111 in conjunction with Art. 22 para. 1 SCC), endangering life (Art. 129 SCC), violence and threats against officers (Art. 285 SCC. 1 SCC), theft (Art. 137 SCC. 1 SCC) and multiple serious traffic violations. He was also convicted of further offences, including gang-related and commercial theft, embezzlement and misuse of identity documents. The court imposed a sentence of 7½ years’ imprisonment, with credit for 336 days of pre-trial detention, as well as a fine of 800 francs.
The Public Prosecutor’s Office of the Canton of Zurich filed a federal nullity appeal requesting that the judgment be set aside and the matter referred back to the lower court for a sentence commensurate with the offender’s culpability. X. requested that the appeal be dismissed and that he be granted legal aid. On 22 August 1994, the Court of Cassation of the Canton of Zurich dismissed the cantonal nullity appeal insofar as it was admissible.
Considerations
The Federal Supreme Court examined the Public Prosecutor’s appeal and first addressed the question of whether the absence of the statutory result of death in a completed attempt under Art. 22 para. 1 SCC must necessarily lead to a reduction in punishment. The Court confirmed that a reduction in punishment is discretionary but always permissible. The extent of the reduction depends on the proximity of the result and the actual consequences of the act. The closer the result and the more serious the consequences, the smaller the reduction will be. The Federal Supreme Court rejected a mandatory reduction in punishment and emphasised that the lower court had not violated federal law by considering the absence of the result only as "slightly mitigating". The gravity of the act, in particular the deliberate firing of a shot at close range with life-threatening consequences, justified a small reduction.
The focus of the review was the reasoning for the sentencing by the lower court. The Federal Supreme Court set high standards for the comprehensibility of sentencing and emphasised that the sentence must appear plausible. A conspicuous discrepancy between the sentence imposed and the considerations set out in the judgment leads to the setting aside of the judgment. The Court examined whether the lower court had correctly weighted all relevant sentencing factors. It was found that a sentence of 7½ years’ imprisonment for attempted premeditated homicide appeared conspicuously lenient in view of the gravity of the act and the respondent’s prior convictions. Although the lower court had classified the objective culpability of the act as "serious" and assessed the motives and the respondent’s conduct as reckless and selfish, the sentence was deemed disproportionately low, particularly since a sentence of at least ten years’ imprisonment would have been…