Facts
The case concerns a couple in divorce proceedings. The husband, Mr. Cramer, took their son to Liechtenstein, even though the District Court of Zurich had awarded custody of the child to the mother for the duration of the divorce proceedings. Despite the court order, Mr. Cramer refused to return the child to his mother. The mother then filed a complaint against him for the offence of abduction of a minor under Art. 220 of the Swiss Criminal Code (SCC).
The District Court of Zurich initially acquitted Mr. Cramer, but the Cantonal Court of Zurich subsequently found him guilty and sentenced him to a suspended prison sentence of 7 days. Mr. Cramer then filed an appeal for nullity against this decision.
Considerations
According to the case law of the Federal Tribunal, Art. 220 SCC can also apply to one of the spouses to whom the judge has not awarded custody of the child during the divorce proceedings. Although this spouse is still considered a co-holder of parental authority, the judge has deprived them of the right to decide on the child's place of residence, care, and upbringing. By retaining the child abroad, Mr. Cramer has thus prevented his wife, domiciled in Zurich, from exercising the rights that had been conferred on her by the court order. He has therefore committed the offence provided for in Art. 220 SCC, not only abroad, but also in Switzerland, where his wife's domicile was located.
The Federal Tribunal rejects Mr. Cramer's argument that the offence of…