Rejection of the qualification of aggravated hostage-taking for a brief hostage-taking with a fake weapon

Facts

On 3 October 1994, the Criminal Chamber of the Canton of Bern convicted [L.] of hostage-taking, a qualified offence under the Narcotics Act, and an offence under the Transport Act, to 3 years' imprisonment and a fine of 300 francs. The conviction for hostage-taking was based on the following facts: In the summer of 1993, [L.] met [M.], who has since died, on the street in B. Both were involved in the drug scene, were unemployed and had financial difficulties. In mid-September 1993, they decided to commit a robbery of the X. Bank branch in B. Unable to agree on who should carry out the robbery, they drew lots. The choice fell on M. On the morning of 17 September 1993, they went to a gun shop to buy a blank pistol for the robbery, but refrained from doing so because the weapon seemed too expensive to them. In the afternoon of the same day, [L.] bought a "Matic Line" model "Jaguarmatic" toy pistol (a so-called "cap gun") in a toy shop, which he then handed over to M. In the afternoon of 17 September 1993, [L.] and [M.] went to the bank. [M.] then put an old pair of shorts over his head, with two eye holes, and entered the bank. At the entrance, he took the toy pistol out of his jacket and approached the counter where the customer [R.] was standing. He pointed the pistol at both Mrs. [R.] and the teller, demanding money from the latter. The teller only handed over the money when [M.] pressed the pistol against Mrs. R.'s head. He first gave [M.] bundles of 100-franc notes, then also 1,000-franc notes, for a total of 36,600 francs. [M.] took the money and left the bank. Both the teller and Mrs. [R.] believed that the pistol was real and loaded.

Considerations

According to case law, when interpreting qualified criminal law provisions, the penalty threatened must be taken into account. For the basic offence of hostage-taking, the minimum sentence is one year's imprisonment. In the case of qualification under Art. 185(2) SCC, it increases to 3 years' imprisonment. Given this substantial increase in the minimum sentence and its consequences for the granting of a suspended sentence, Art. 185(2) SCC must be interpreted restrictively.

To accept the qualification, it is not sufficient that the threat has increased the coercion on the third party's freedom of decision. In addition, the protected legal interests of the hostage must have been objectively and significantly more seriously…