According to Article 47 of the Penal Code, the judge determines the penalty based on the offender's culpability. The judge considers the offender's previous record and personal situation as well as the impact of the penalty on their future.
The offender's culpability is assessed based on both objective and subjective criteria.
Objective criteria relate to the act itself, namely:
The severity of the harm or the endangerment of the legal interest.
The reprehensibility of the act: for example, the degree of violence or threat used and the level of planning involved in the act.
Subjective criteria relate to:
The motivations and goals of the offender: for example, situations where the offender acts out of greed or commits an offense to avoid police arrest. The judge also considers the intensity of the offender's criminal intent, such as whether the offender commits repeated or prolonged offenses.
The extent to which the offender could have avoided the endangerment or harm: for example, if the offender’s personal situation prevents them from properly understanding the illicit nature of their behavior and from acting accordingly. The law also considers external circumstances, such as if the offender faces temptation or necessity.
In addition to these elements related to culpability, other factors about the offender should be considered:
Previous record: This includes the offender's history at the time of the offense, such as family relationships, upbringing, education, and social integration. It also includes prior criminal convictions.
Personal situation: This encompasses their health, age, intellectual abilities, professional situation, etc. Additionally, the offender's behavior after the act and during the criminal procedure is significant (e.g., remorse, confessions, cooperation, and awareness).
Effect of the penalty on their future: When determining the penalty, care must be taken to ensure that it does not hinder the offender's favorable development. The offender's vulnerability, particularly due to age or health, should also be considered.
Finally, it should be noted that the judge has broad discretion in determining the penalty. It is up to the judge to decide the weight given to the various factors mentioned above.
If you would like more information on this topic, the Valentin Legal Consultation will be happy to welcome you to our offices at 1 Rue du Valentin, 1004 Lausanne to provide more comprehensive answers. We can also be reached by phone at 021 351 30 00 and by email at info@cjdv.ch.
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