Facts
Parties: Appellant A. (born 1955) against the Public Prosecutor's Office of the Canton of Lucerne and the Probation and Parole Service of the Canton of Lucerne.
Facts: On 3 September 2021, [A.] was sentenced by the Criminal Court of the Canton of Lucerne to a term of imprisonment of 2 years and 10 months for embezzlement, fraud, breach of trust, and multiple forgeries. On appeal, the Cantonal Court of Lucerne reduced the sentence to 2 years and 9 months. With an application dated 22 February 2024, [A.] requested the enforcement of the unconditional part of the prison sentence in the special form of semi-detention. The Probation and Parole Service of the Canton of Lucerne (VBD) rejected the application with a decision dated 22 April 2024. The Cantonal Court of Lucerne confirmed this decision with a judgment dated 16 July 2024. [A.] subsequently filed an appeal with the Federal Supreme Court.
Main question: Whether the activities of the appellant (operating an online shop, attending trade fairs, organizing seminars, and writing cookbooks) qualify as work within the meaning of Art. 77b para. 1 lit. b SCC and thus justify the granting of semi-detention.
Considerations
Semi-detention under Art. 77b SCC is intended to prevent disintegration from the world of work and requires that the convicted person engages in regular work, training, or employment for at least 20 hours per week. The concept of work includes both dependent and self-employed activities, in each case requiring gainful employment. The decisive factor is whether the activity is profit-oriented, which is composed of the general potential for profit and the individual intention to make a profit.
The lower court found that the appellant had not provided a comprehensible statement of her income and expenses. The average monthly gross income amounted to around CHF 500, with expenses exceeding income. The lower court concluded that the appellant's activities did not generate any profit and were therefore to be classified as mere hobby. The appellant did not dispute that the net income could not be precisely determined and that her activities did not generate significant turnover.
The lower court rightly referred to the case law on tax and social security law regarding the distinction between self-employment and mere hobby. The fact that the appellant is of retirement age does not per se preclude the granting of semi-detention. The decisive factor is whether the activities are to be classified as self-employment…