Decision on the suspension of the execution of the custodial sentence after a juvenile criminal law measure

Facts

[G.], born on 21 December 1962, was convicted on 22 October 1981 by the juvenile court of Oberland for a series of offences (including 26 cases of theft, some of which were committed in a group) that he committed between 1979 and 1981, when he was between 17 and 19 years old. The court ordered a placement measure in an educational institution under juvenile criminal law and imposed a sentence of five months' imprisonment for the offences committed after the age of 18 (aggravated theft in two cases for a total amount of approximately 3,000 francs, offences against the RTA and the NarcA). The execution of this prison sentence was suspended until the termination of the juvenile criminal law measure, in accordance with Art. 1 para. 4 CARO 1.

After being placed in an apprenticeship institution, [G.] committed new offences in October/November 1981 and was incarcerated on 20 November 1981. Released on 3 December 1981, he was admitted on 15 December 1981 to the juvenile institution in Prêles for the execution of the measure ordered on 22 October 1981. In July 1982, he was allowed to leave the institution to perform his military service, during which he committed the misappropriation of radio equipment and was convicted by a military court on 22 April 1983.

After his release from military service in November 1982, [G.] no longer had to return to the juvenile institution. The president of the juvenile court ordered his conditional release from the juvenile criminal law measure on 20 December 1982, with a one-year probation period and supervision. However, he committed a series of thefts again towards the end of the probation period, in November/December 1983.

Before the conclusion of this new criminal proceedings, the juvenile court of Oberland declared on 25 May 1984 the execution of the five-month prison sentence, initially suspended, as enforceable.

Considerations

The Federal Tribunal considers that the regulation issued by the Federal Council in Art. 1 para. 4 CARO 1 does not violate the Criminal Code and is covered by the delegation in Art. 397bis para. 1 let. d SCC. This regulation provides that when a transitional offender is subject to a juvenile criminal law measure, a custodial sentence may also be imposed for offences committed after the age of 18, with suspension until…