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Sentencing guidelines Switzerland's leniency on criminals, explained

Ein Bett in einer Gefängniszelle

A view inside a prison cell in Lenzburg, canton Aargau

(© KEYSTONE / WALTER BIERI)

When compared with many other countries, Switzerland tends to hand down shorter sentences, particularly for violent crime. And usually only repeat offenders or serious criminals have to do prison time. Why?

Closer inspection of the penal codes of European countries shows that German-speaking countries, including Switzerland, issue relatively lenient criminal sentences. Anyone who kills a person in Switzerland while suffering “great mental distress” could, under certain circumstances, get just one year in prison.

In other countries, the penalties are much more severe, as the following chart shows:

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Criminal sentences international comparison

In Switzerland, a life sentence can be given for murder, but under Swiss criminal law “life” doesn’t mean that the perpetrator remains in prison for the rest of their days.

What does “life” mean in Swiss criminal law?

After 15 years, sometimes after just ten years, a conditional release is possible. It is generally the norm in Switzerland that a criminal is conditionally released after serving two-thirds of their sentence.

Lenient judges

Hans-Georg Koch, a criminal law expert at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany, downplays these international comparisons. First, he says criminal law comparisons are generally very difficult to make because of differing legal systems. Second, he says it is important to compare the actual penalties, rather than the sentences stipulated in the law, as these can reveal little.

Unfortunately, there are no statistics comparing sentences across countries. But it is clear that Swiss judges tend to deliver lenient sentences: their length tends towards the lower end of the range. “Switzerland has a very unusual penalty law, above all in the day-to-day application of penalties by the courts,” says Martin Killias, a renowned Swiss criminologist and criminal lawyer.

Gabriella Matefi, the president of the Court of Appeal in Basel City, explains further: “The higher end of the sentencing range is intended for the very serious cases that a normal person can perhaps not even imagine. In judging real crimes, sentencing is on average in the lower half or lower third of the possible range, whether it is a matter of fraud, bodily harm or even manslaughter.”

Only serious criminals have to go to prison

Older statistics show that only a handful of countries send as few convicted criminals to prison as Switzerland. That is partly because first-time offenders only receive sentences of less than two years under certain conditions.

A look at the current Swiss statistics shows that since 2007, the penalties for violent offences have frequently been fines rather than prison sentences. Here are the sentences for theft and bodily harm in 2017, compared with 2006:

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Graphic on convictions for physical injuries

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Graphic on convictions for theft

This is the consequence of a reform aimed at avoiding short prison sentences. “In Germany and Switzerland, the authorities want to avoid imposing short sentences where possible because offenders tend to turn into bigger criminals in prison,” says Koch. In English-speaking countries, a relatively large number of perpetrators sit out rather long jail sentences even for a comparatively trivial offence, just because they are repeat offenders, he says.

'Punishment serves justice'

According to Killias, the view that short prison sentences are damaging has become a set-in-stone dogma in Switzerland. But there is no scientific evidence that the risk of recidivism increases after a short prison term. And the fact that punishments should also serve justice and stabilise social order is sometimes overlooked.

The Swiss reform was criticised and has already been revised. But Koch says avoidance of short prison terms has basically remained policy. “For crime prevention, other factors play a role in any case,” Koch says.

“The average length of a prison sentence only plays a small role in the deterrent effect of a punishment,” Matefi says. “For crime prevention, the risk of having to face any kind of punishment – of being caught and punished – is much more decisive.” And in this respect, Switzerland measures up quite well in international comparisons. 

Lenient penalties as 'cultural progress'

But why is Swiss law so indulgent to criminals and why do judges make it even more lenient?

One explanation may be the teaching and research that judges rely on in their sentencing. This tends to be sceptical about severe punishments. “People working in courts today have been influenced by decades of teaching about the damage caused by prison sentences,” says Killias. “In central Europe’s culture-focused countries, it is seen as culturally progressive to deliver moderate punishments,” Koch says. “Prison sentences are shorter than in Britain or the US.”

Criminal law in Europe is in general very humane compared with other parts of the world. The death penalty, or corporal punishments, such as whipping or hacking off limbs, are rejected. This is a stance that is generally accepted by the population.

However, a group of Swiss campaigners collected signatures in 2010 for a people’s initiative to reintroduce the death penalty for sex abuse with murder. But it later withdrew the initiative. The initiators simply wanted to win an audience and draw attention to their grievances – they were all connected to one victim. Their main complaint was that the custody initiative, aimed at ensuring extremely violent sex criminals should be imprisoned for life, had not been implemented. 

Swiss “security custody” draws criticism

Because of the relatively short prison sentences and the fact that sentences for multiple crimes are not added up but just increased, Switzerland faces the problem that dangerous serial killers or sex criminals can get released and possibly strike again at the earliest opportunity.

Switzerland and Germany have thus settled on “security custody,” under which a repeat offender remains in prison after serving their sentence because they are too dangerous for society. The offender is only released from prison if they are expected to behave once free.

This instrument is viewed critically abroad. The European Court of Human Rights in Strasbourg ruled against Swiss and German custody laws. “But almost all countries have thought of some way to keep extremely dangerous criminals apart from society,” says Koch.

Other countries pronounce long prison sentences or add sentences for multiple crimes on a strict mathematical basis, so that the offender will not be released in his lifetime. To put an end to the debate over security custody, Natalie Rickli of the Swiss People’s Party and Andrea Caroni of the Radical Party propose to increase the length of detention. This would bring Switzerland in line with other countries.

Heavier penalties

The government also seems to have recognised that the penalties for violent crime are not appropriate when compared with those for financial crime, and that judges tend to issue lenient sentences. It wants to “harmonise” the ranges for sentences. There has never been a comprehensive cross-analysis of the rules for sentencing to determine whether they are appropriate for the severity of the crime and compare appropriately, is the reasoning given on the website of the Federal Justice Office. Violent crimes and sex offences, in particular, should be punished more severely in future.

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Translated from German by Catherine Hickley

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