Breach of the peace of the dead by omission

Facts

The appellant, [A.], was convicted of breach of the peace of the dead due to his omission of not having notified the competent authorities of the death of his friend, C.B., whose body was discovered in an advanced state of putrefaction fifteen days after her death. [A.] had discovered the lifeless body on August 26, 2021, and had not taken the necessary measures to ensure a dignified handling of the body.

The facts took place in U., avenue W., between August 25, 2021, at 5:58 p.m. and August 26, 2021, around 4:00 p.m. The appellant was declared criminally irresponsible for the acts attributed to him and was sentenced to institutional treatment within the meaning of art. 59 SCC.

The Federal Court was seized of a criminal appeal against the decision of the Penal Appeal Court of the Vaud Cantonal Court, which had confirmed the appellant's conviction for breach of the peace of the dead.

Considerations

4.1 The redrafting of art. 262 SCC, which came into force on July 1, 2023, has no impact on the interpretation of the penal norm. The offense of breach of the peace of the dead protects the sentiment of piety towards the dead, considered in a general sense and not limited to the emotions of the deceased's close relatives.

4.2 The notion of profanation refers to any mistreatment inflicted on a dead body, whether it is stripped, mutilated, or the object of any other gesture of contempt or depreciation. The compatibility of the author's behavior with social norms determines the realization of the objective element of the offense.

4.3 The result-based offense punished by art. 262 SCC can be committed by omission, in other words by a passive behavior contrary to an obligation to act. The position of guarantor assumes the existence of a particular link between the person who omitted to act and the breach of the legal good protected by the penal norm.

4.4 The appellant objects that he could not be reproached for the same thing as if he had committed the offense through active behavior. He could only be held responsible for the omission of not having notified the competent authorities within the meaning of art. 34a of the CivStO, but not for having left or placed the…