Facts
The case concerns a Swiss national, Jean [B.], who committed indecent acts on a Swiss child, Georges X, under the age of 12, during a stay in Italy. The victim's father did not file a complaint, having been misled by the investigating magistrate who told him that the crimes attributed to [B.] were prosecuted ex officio. The Correctional Court of the Vevey district sentenced [B.] to two and a half years' imprisonment for indecent acts on children. The Criminal Court of Appeal of the Vaud Cantonal Court confirmed this judgment, considering that the principle of lex mitior applied and that the victim's father had expressed his wish to punish B.
The appellant, [B.], appeals to the Federal Court, requesting acquittal. The Public Prosecutor's Office proposes the dismissal of the appeal.
Considerations
The Federal Court examines the conditions for the application of Swiss criminal law to a crime committed abroad by a Swiss national against a Swiss national. It finds that art. 5 SCC provides for the application of Swiss criminal law, as the incriminated acts were committed abroad by a Swiss national against a Swiss national. Swiss law is applicable, as the act is also punishable in the state where it was committed, namely Italy.
The Federal Court then examines the question of whether art. 5 SCC implies consideration of the requirements of foreign law regarding the filing of a complaint. It finds that the complaint is a condition for criminal prosecution and falls under procedure, not substantive law. Swiss law does not contain an exception to art. 5 SCC for intertemporal law. The Federal Court concludes that the absence of a complaint, even under Italian law, does not detract from the…