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National Criminal Law in a Comparative Legal Context

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Schriftenreihe des Max-Planck-Instituts filr ausländisches und internationales Strafrecht National Criminal Law Strafrechtliche Forschungsberichte in a Comparative Legal Context Herausgegeben von Ulrich Sieher in Fortfilhrung der Reihe "Beiträge und Materialien aus dem Max-Planck-Institut filr ausländisches und internationales Strafrecht Freiburg" Valurne 1.1 begründet von Albin Eser Introduction to National Systems National characteristics, fundamental principles, Band S 128.1.1 and history of criminallaw England and Wales, Scotland, Sweden, Switzerland edited by Ulrich Sieber • Konstanze Jarvers • Emily Silverman Bibliothek Max-Planck-lnstitut für ausländisches (j) und internationales Strafrecht Duncker & Humblot • Berlin Comprehensive summary of project I. Introduction to national systems Vol. I: A. National characteristics B. Comparative legal classification and international ties C. Constitutional parameters of criminal law D. Fundamentals of criminallaw E. Nature, form, and boundaries of criminallaw F. Sources of criminal law and interpretation aids G. Developments in criminallaw, criminal procedure, and the execution of punishment II. Foundations of criminallaw Vol. 2: A. Principle oflegality 8. Extraterritorial jurisdiction- the applicability of domestic criminal law to activities committed abroad Vol. 3: C. Concept and systematization of the criminal offense D. Objective aspects ofthe offense E. Subjective aspects ofthe offense Vol.4: F. Punishable conduct prior to the completion of an offense G. Parties to crime H. Criminal liability for crimes in companies, associations, and other collective legal entities Vol. 5: J. Grounds for excluding criminalliability K. Grounds for terrninating or removing criminalliability Table of contents Foreword V List of legal orders included and contributing authors XI Comprehensive summary ofproject XIII Detailed outline of country reports in volume 1.1 XVII Introduction to national systems • England and Wales • Scotland 73 • Sweden 131 • Switzerland 205 Editors and authors 312 Detailed outline of country reports in volume 1.1 A. National characteristics I. Geography 2. Population a) Population and demographics b) Language c) Religion 3. Economy 4. System of government 5. Crime and criminal prosecution a) Investigating authorities b) Prosecuting authorities c) Criminal courts d) Criminal penalties e) Execution of custodial penalties B. Comparative legal classification and international ties 1. Comparative legal classification 2. Effects of international ties a) Membership in international and regional organizations b) S ignature and ratification of international treaties and conventions C. Constitutional parameters of criminallaw 1. Supra-statutory rules as repositories of criminallaw principles 2. Fundamental rights and freedoms and the criminallaw 3. Other supra-statutory norms relevant to criminallaw and crimina1 procedure XVIII Detailed outline D. Fundamentals of criminallaw I. Functions of criminal law 2. Limits on criminallaw imposed by the rule of law 3. Purposes ofpunishment 4. Fundamental principles of criminal procedure E. Nature, form, and boundaries of criminallaw National characteristics, fundamental principles, 1. Nature and form of crimina1 law and history of criminallaw in 2. Boundaries between criminal law and other areas of law with a criminal or quasi-criminal function 3. Specialregimes connected to the status ofthe offender England and Wales* F. Sources of criminallaw and interpretation aids 1. Overview 2. Legislation and other written laws Susanne Forster 3. Customary law 4. Case law and judicial opinion 5. Legalliterature and academic opinion G. Developments in criminal law, criminal procedure, and the execution of punishment 1. Overview 2. Developments in substantive criminallaw 3. Developments in criminal procedure 4. Developments in the execution ofpunishment • This country report frrst appeared in the German version of the project as "Rahmen­ bedingungen, Vorgaben, Grundlagen und Entwicklung des Strafrechts in England und Wales." In: Ulrich SieberiKario Comils (eds.), Nationales Strafrecht in rechtsvergleichen­ der Darstellung, vol. 1. Berlin 2009, pp. 127-190. lt was translated, revised, and updated for this publication. The author would like to thank Alexander Klausmann, Ref. jur., for his valuable assis­ tance in the preparation ofthis report. 204 Comils SOU Statens offentliga utredningar (Govemment official reports) SvJT Svensk Juristtidning (Swedish legal joumal) TemaNord Publication ofthe Nordic Council ofMinisters TF Tryckfrihetsförordningen (Freedom of Press Act) UN United Nations USD United States Dollar National characteristics, fundamental principles, YGL Yttrandefrihetsgundlagen (Fundamental Law on Freedom ofExpression) and history of criminallaw in ZStW Zeitschrift für die gesamte Strafrechtswissenschaft Switzerland Nadine Zurkinden Contents A. National characteristics A. National characteristics 207 1. Geography 1. Geography 207 2. Population 207 Depending on the point of reference, Switzerland lies in central or westem Eu­ 3. Economy 210 rope.1 It is a landlocked country but is the source of a number of major rivers that 4. System of government 211 flow into the seas surrounding Europe. It borders Italy, France, Germany, Austria, 5. Crime and criminal prosecution 217 and Liechtenstein. With a total area of only 41,285 sq km, Switzerland occupies the 8. Comparative legal classification and international ties 234 132nd place in a worldwide comparison? It is thus bigger than Liechtenstein but I. Comparative legal classification 234 still a very small country compared to its other neighbors that are double (Austria) 2. Effects of international ties 237 to 13 tim es (France) its size. C. Constitutional parameters of criminallaw 249 The lowest point of elevation in Switzerland is in the southem canton of Ticino/ 1. Supra-statutory rules as repositories of criminallaw principles 249 where the Lake Maggiare region lies at an altitude of 195 meters above sea Ievel. 2. Fundamental rights and freedoms and the criminallaw 251 With its 4,634 meters above sea Ievel, the so-called Dufourspitze, in the southem 3. Other supra-statutory norms relevant to criminallaw canton of Valais, is the point of highest altitude.4 Switzerland's diverse Iandscapes and criminal procedure 252 can be divided into three geographic regions: the Jura (12% of the surface), the D. Fundamentals of criminallaw 257 Plateau (23% of the surface), and the Alps (65% of the surface).5 Two-thirds of I. Functions of criminallaw 257 Switzerland's population reside in the Plateau region.6 2. Limits on criminallaw imposed by the rule of law 258 3. Purposes of punishment 259 Bem has been the capital ofSwitzerland since 1848 when the first federal consti­ 4. Fundamental principles of criminal procedure 262 tution was adopted.7 Other major metropolitan areas are Zurich, Basel, Geneva, and Lausanne.8 E. Nature, form, and boundaries of criminal Iaw 269 I. Nature and form of criminallaw 269 2. Boundaries between criminal law and other areas of law with a criminal or quasi-criminal function 273 2. Population 3. Specialregimes connected to the status ofthe offender 275 F. Sources of criminal law and interpretation aids 281 a) Population and demographics 1. Overview 281 In December 2011, the populationwas 7.95 million.9 In 2013, Switzerland occu­ 2. Legislation and other written laws 282 10 3. Customary law 287 pied the 95th position in a worldwide ranking. The population density in 2011 4. Case law and judicial opinion 288 5. Legalliterature and academic opinion 289 G. Developments in criminallaw, criminal procedure, and the execution 1 Bundesamt für Statistik, Jahrbuch 2013, p. 550. of punishment 292 2 Fischer Weltalmanach 2013, p. 400. I. Overview 292 3 Fora Iist of cantons, see below 4. 2. Developments in Substantive criminal law 294 4 ClA World Factbook. 3. Developments in criminal procedure 298 s Gilgen, Raumplanung, p. 120. 4. Developments in the execution ofpunishment 300 6 Lüthi, Mittelland (Region), pp. 615-616. List of abbreviations in country report Switzerland 309 7 Dändliker/Bandle, Schweizergeschichte, p. 145. 8 Bundesamt für Statistik, Bevölkerungsstand und -Struktur. 208 Zurkinden A. National characteristics - Switzerland 209 was about 199 people per sq km. 11 In that same year, 71.6% ofthe population ages tion. 19 Topreserve Romansh, an endangered language, its five traditionally spoken 15 and above resided in German-speaking, 23.5% in French-speaking, 4.5% in and written idioms were artificially unified in the standard language Romansh Italian-speaking, and 0.4% in Romansh-speaking regions. 12 Also in 2011, the ur­ Grischun in 1982. The Confederation and the canton of Graubünden have used this ban populationwas 73.7 %, the rural population 26.3%Y About half of the urban language for official documents since 2001. However, Romansh Grischun remains population lived in or around five metropolitan areas: Bem, Zurich, Basel, Geneva, controversial throughout the Romansh community_2° Since it was created only re­ and Lausanne. The cities themselves ranged in population from about 126,000 cently, it cannot have supremacy over traditional Romansh idioms. 21 Native Ro­ (Bem) to 377,000 (Zurich). 14 mansh speakers still amounted to 15.6% of the population in Graubünden in In 2011, 22 .8 % of the population was made up of foreign residents. More than 2010.22 half of them were bom or had been living in Switzerland for more than 15 years; As a rule, German, French, and ltalian are considered
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