The institution of probation allows a judge to suspend either fully or partially the execution of a sentence for a certain period, called the probation period, which can last from two to five years. If the convicted individual does not commit any offenses during this period, they do not have to serve the suspended sentence (Article 45 CP). However, if during the probation period the convicted individual commits a crime or offense and it is then anticipated that they will commit further offenses, the judge revokes the probation or the partial probation (Article 46 paragraph 1 CP).
To revoke probation under Article 46 paragraph 1 CP, the judge must consider two elements:
The convicted person commits a crime or offense during the probation period: The new offense must have a minimum level of seriousness, meaning it must be punishable by imprisonment or a fine (Article 10 CP).
It is anticipated that they will commit further offenses: The judge makes a negative prognosis regarding the future behavior of the offender. To assess the risk of reoffending, a comprehensive evaluation of all circumstances of the case must be conducted. This includes considering the facts of the case, the offender’s past life and reputation, their criminal record, behavior at work, social ties, addiction risks, etc.
For example, probation was revoked in the following case: the offender had committed a crime under drug legislation and was sentenced to a custodial sentence with probation and a probation period of five years, and was expelled from Switzerland. They returned to Switzerland and committed a new crime during the probation period (first condition fulfilled). The court then determined the prognosis (second condition). It was found to be negative as the offender reoffended with the same type of crime shortly after their release. They also denied the obvious, acted for profit, and returned to Switzerland despite the expulsion order (CAPE ruling of January 6, 2020 (Jug/2019/406, No. 344)).
According to Article 46 paragraph 2 CP, the judge does not revoke probation if it is anticipated that the convicted person will not commit further offenses (absence of a negative prognosis). However, they may issue a warning and extend the probation period. For this extended probation period, the judge may order probation assistance and impose conduct rules.
For example, the Federal Court decided not to revoke probation in a case where all circumstances were particularly favorable to the convict, despite the fact that they had committed several offenses during the probation period, suggesting that they would not commit further offenses. Specifically, they had not committed any offenses in the years following the last crime, their personality had developed positively, they made efforts to mitigate the damage, they had integrated well professionally, and their family environment had stabilized since their marriage and the birth of their first child (ATF 134 IV 140, consid. 5.1).
Ultimately, the judge’s assessment of the prognosis is a crucial matter affecting their decision on probation, as depending on the prognosis reached, the judge must either refrain from revoking the probation or revoke it entirely (with the consequence that the offender will indeed have to serve their sentence).
If you wish to obtain more information on this subject, the Valentin Legal Consultation will be happy to welcome you to our offices at 1 Rue du Valentin, 1004 Lausanne to answer any questions you may have. We are also reachable by phone at 021 351 30 00 and by email at info@cjdv.ch.
Comments