Leniency notice la USA or just punishment according to Swiss law?

31 May in the National Council

by Dr iur Marianne Wthrich

In the US and some other states the law enforcement authorities can assure a criminal of impunity if he is prepared to testify as “principal witness”, i.e. the main witness of the prosecution against his accomplices. In the legal understanding and the sense of justice of the population in Switzerland and in many other states such “deals” with dangerous criminals are seen as strange. However, there is currently a discussion in the National Council and in the Council of States on whether to apply in the criminal prosecution of criminal organisations a leniency notice that would go further than the already existing approach called “minor leniency notice”. On 14 December 2016, the Council of States ratified the Motion “Janiak” as the first council, which instructed the Federal Council to draft such a regulation. In a memorable statement, the Federal Council warns to observe legal and anchored principles. On 6 April 2017, the Legal Affairs Committee of the National Council (LAC-N) approved the Motion Janiak by a majority, and launched as a variant its own motion, which would be better suited to the Swiss legal system. In the first week of the coming Summer Session, on 31 May, the National Council will decide on the two motions.
This is to briefly state what the two parliamentary initiatives are about and how they can be judged from a legal and ethical point of view.
Anyone who has committed a crime should also stand up for it. It follows from the principle of equality before the law (Article 8 (1) of the Federal Constitution) and from the prohibition of arbitrariness (Article 9) that, in principle, every delinquent must be punished equally, weighing the severity of his guilt in individual cases. On this legal basis, the criminal law is based in a state under the rule of law, as it is in the Swiss Criminal Code (StGB). In order to do justice to every perpetrator, the Criminal Code also recognises the mitigation of punishment, for example, “if the perpetrator acts with sincere remorse, and he has, in particular, compensated for the damage as far as he could be expected” (Article 48d).

The minor principal witness regulation in Article 260ter of the Criminal Code

With the increased incidence of criminal organisations also in Switzerland, a new criminal standard was adopted in 1994, which punishes the participation in such organisations and also contains reasons for a mitigation of the punishment.
Article 260ter provides for participation in organisations1, which have the purpose of committing crimes of violence or of making them financially beneficial, imprisonment of up to five years or a monetary penalty. The “minor leniency notice” is contained in paragraph 2 of the article: “The judge can mitigate punishment if the perpetrator attempts to prevent further criminal activity of the organisation.”
This rule is compatible with the Swiss understanding of the law: the offender is to be punished more leniently if he cooperates with the law enforcement authorities in the interests of the common good and is committed to the prevention of further offenses.

Motion Janiak (16.3735): Impunity for cooperative violators?

By the Motion 16.3735 by the State Concillor, Claude Janiak (SP Basel-Landschaft, Social-Democratic Party in Basel-countryside), the Federal Council is to be commissioned to submit to the Parliament “a  regulation [extending beyond current] for the introduction of crown witnesses in Swiss criminal law”. The Motion aims to ensure “effective and efficient criminal prosecution of criminal organisations and other serious crimes”. “Examples abroad, particularly in Italy and the USA, prove the effectiveness of leniency regulations.”
For legal reasons, but also for ethical reasons, a wider privilege of a member of a criminal gang, in particular his complete impunity, would be extremely problematic. Should the prosecutor’s office and the courts “deal” with a violent offender to make him talk? Do we citizens really want to have our law enforcement agencies go to such a level, thus overriding the principles of law (equality of law, prohibition of arbitrariness, sense of justice)? In addition, the alleged “effectiveness” would have to be scrutinised more closely. Undoubtedly, the prospect of impunity will lead a criminal to “unpack”. But even the most careful review of his testimony would not guarantee that not  the wrong people will be condemned to high punishments and that the real villains are laughing. Especially in the US so-called “legal errors” are frequent, innocent people are again and again condemned to decades of imprisonment (or even to death), while the gangsters go unscathed. If we want to keep our rule of law, we can certainly not agree to a similar procedure.

Convincing statement of the Federal Council of 23 November 2016 on Motion 16.3735

“As far as crown witnesses can be rewarded for their co-operation even with impunity, the Federal Council rejects the motion: Such a far-reaching regulation would, in particular, run counter to the basic principles of equality of law and the culpability principle, it includes the risk of misleading justice and decreases the willingness to observe the norm. […] It is also hard to understand by the population, if such perpetrators, which have committed the most serious offenses (e.g. terrorist attacks) and potentially have killed many people, can reach impunity by a cooperative behavior.
Because the motion can also be understood as a desire to introduce an extensive leniency regulation, the Federal Council considers it to be rejected.”
There is nothing to add.

Justified concerns of the National Council Committee

On the basis of these considerations, it is difficult to understand that the Council of States has agreed the Motion Janiak in the first round. It is also difficult to understand that Legal Affairs Committee of the National Council (LAC-N) is asking the National Council by 15 to 8 votes and 2 abstentions, to accept the Motion Janiak (Report of the Legal Affairs Committee of the National Council, 6 April 2017, p. 1). This is due to the almost naive argument that the earliest possible deal with a member of a criminal organisation or a terrorist organisation could have positive consequences: “Thanks to such a principal witness regulation, confessed culprits could be pledged for their information mitigation of punishment or impunity even at an early stage of the proceedings by the law enforcement authorities (and not only afterwards by the Courts). This could help them to co-operate with the law enforcement agencies.”
The Committee also incorporates serious reasons against the exemption from punishment of dangerous criminals: “On the other hand, there is a risk that the prospect of the best possible ‘deal’ with the law enforcement authorities is also an incentive for interesting sounding but false statements. A further critical point could be that the assurance of mitigation of punishment or impunity at an early stage of the proceedings would limit the scope of the court and therefore make it impossible to punish comparable offenses on the same basis.” (Report of the LAC-N of 6 April 2017, p. 3f.)
Here, a new important argument arises: If the prosecutor promises a mild judgment to a criminal during his criminal investigation, the court would have to adhere to it later, even if it comes to the conclusion that the “key witness” is more heavily guilty than an accomplice, which is more strictly punished. Or should his punishment be reduced also for reasons of equality, so that both get away too well? It is even clearer that the whole construction of the principal witness regulation can not be sustained by the rule of law.

Motion LAC-N (17.3264): Extension of the so-called “minor principal witness regulation” to members of terrorist organisations

On 6 April 2017, the “Legal Affairs Committee of the National Council (LAC-N)“ had launched its own motion as an addition to Motion Janiak and taking into account the opinion of the Federal Council. The latter intends to extend the provision on the mitigation of punishment of Article 260ter (2) of the Criminal Code to the “Federal Law on the Prohibition of the Al-Qaeda and Islamic State Groups and related Organisations of 12 December 2014”. According to this Act, the participation or support of these terrorist organizations in Switzerland or from the territory of Switzerland is punishable.
The LAC-N wants to examine in concrete terms a draft of the Federal Council “whether the extension of the scope of the ‘minor principal witness regulation’ is suitable to combat terrorist organisations more effectively” – without, however, going as far as Motion Janiak.
The motion of the LAC-N is thus confined to the possibility of a reduction of the punishment more justifiable according to our legal understanding, “[…] if the perpetrator tries to prevent the further criminal activity of the organisation.” This standard is to be extended to include IS or al-Qaeda supporters in Switzerland.
In view of the fact that any individual case is to be assessed separately before the court, this initiative of the National Council Commission can be approved.
***
Conclusion: Motion Janiak is to be rejected. The motion of the LAC-N can be assumed – if it is designed with a view to the common good.
It is difficult to see any reason for why Switzerland should adopt a practice from the USA, which is incompatible with our legal understanding and can lead to serious injustices. For their negative effects (rewards of criminals washed with all waters on the one hand, destruction of the confidence of the population in the justice of jurisprudence on the other) can not justify a – perhaps! – improved clarification of individual crimes.
Penalty reduction in individual cases and taking into account all facts and circumstances – yes. Negotiation of penalty reduction or even exemption with members of criminal groups already in the investigation phase with obliging effect for the judging court – no.     •

1     Committing such crime can of course be punished even harder.