Facts
The Basel-Country Penal Court sentenced M. on December 11, 1981, to two months in prison for abandonment of family, with suspension of sentence and a probation period of three years. The Public Prosecutor's Office of Basel-Country filed a nullity appeal with the Federal Court, requesting the annulment of the appeal court's judgment and the referral of the case to the lower court for refusal of suspension of sentence due to lack of objective conditions.
The facts are as follows: M. served several prison sentences in the five years preceding the judgment, including 20 days in prison for receiving stolen goods, 2 months and a half in prison for indecent assault on a minor, 3 weeks in prison for abandonment of family, and 3 months in prison for theft. The Federal Court must determine whether the suspension of sentence should be refused due to lack of objective conditions, in accordance with Article 41, ch. 1, al. 2 of the Swiss Criminal Code (SCC).
Considerations
The Federal Court examined the question of whether the convicted person had served a prison sentence of more than three months in the five years preceding the judgment, which is an objective condition for refusing suspension of sentence. The Federal Court considered that the duration of uninterrupted imprisonment is determinative, and not the number of judgments.
The Federal Court recalled its case law according to which suspension of sentence should only be refused if the convicted person has served a prison sentence that should have had an educational effect on him. The Federal Court considered that prison sentences of less than three months are not educational and that their separate execution does not justify refusal of suspension of sentence.
However, if several prison…