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Suppose Bob earns his living by stealing from a specific supermarket store. Now one day, he is caught and the police can prove he stole stuff for a total value of CHF 10000. Now several things will happen (I think):

  • A criminal trial will take place (the State vs. Bob) where he's charged with theft and, lets say convicted to 12 months in jail and a CHF 1000 fine. Additionally, he has to carry the court costs of 800 bucks.
  • A civil trial will take place (the Supermarket vs. Bob) where he's charged again for theft and convicted to pay back 10000. Additionally, he has to pay the court costs and the lawyer of the Supermarket. Another 1500 bucks.

So in total, in this case he has to pay the total sum of CHF 13300. A 33% "penalty" (in addition to a jail sentence).

Is this everything? Did I miss some costs that might be imposed on a thief? Or is this even exaggerated and stealing is actually cheaper? I'm mostly interested in answers to civil law systems, but if one has an answer for common law, that'd be appreciated, too.

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The Court would have the authority to issue a restitution award in the criminal case without a separate civil case as set forth in Article 53 of the Swiss Criminal Code and promptly admitting guilty and repaying the value of what was stolen is a powerful mitigating factor in a sentence.

I suspect that the fine and community service penalties authorized in Switzerland would be much greater than suggested.

The penalty for theft is set forth in Article 139 of the Swiss Criminal Code which provides that:

  1. Any person who for his own or for another's unlawful gain, appropriates moveable property belonging to another person with the object of permanently depriving the owner of it shall be liable to a custodial sentence not exceeding five years or to a monetary penalty.

  2. The offender shall be liable to a custodial sentence not exceeding ten years or to a monetary penalty of not less than 90 daily penalty units if he commits theft on a regular basis for financial gain.

  3. The offender shall be liable to a custodial sentence of at least six months and no more than ten years, if he commits theft as a member of a group that has been formed for the purpose of carrying out repeated acts of robbery or theft, if he carries with him a firearm or other dangerous weapon for the purpose of committing theft, or if he represents a particular danger in any other way due to the manner in which he commits theft.

  4. Theft to the detriment of a relative or family member is prosecuted only on complaint.

Section 34 of the Swiss Criminal Code sets forth a system of "day fines" for most offenses:

1 Unless the law provides otherwise, a monetary penalty amounts to a minimum of three and a maximum of 180 daily penalty units. The court decides on the number according to the culpability of the offender.

2 A daily penalty unit normally amounts to a minimum of 30 and a maximum of 3000 francs. By way of exception, if the offender’s personal or financial circumstances so require, the value of the daily penalty unit may be reduced to 10 francs. The court decides on the value of the daily penalty unit according to the personal and financial circumstances of the offender at the time of conviction, and in particular according to his income and capital, living expenses, any maintenance or support obligations and the minimum subsistence level.

3 The authorities of the Confederation, the cantons and the communes shall provide the information required to determine the daily penalty unit.

4 The number and value of the daily penalty units must be stated in the judgment.

Thus, our offender faces up to ten years in prison or 90-180 penalty units of fines, for the offense of stealing 10,000 Swiss Francs worth of property plus 10,000 Swiss Francs of restitution. If the fine is imposed, rather than prison, the fine would be 2,700 to 540,000 Swiss Frances based upon the convicted offenders ability to pay, an amount mostly based upon the income and assets of the convicted thief.

Collection of the fine and posting security for the amount owed is governed by Article 35 of the Swiss Criminal Code which states:

1 The executive authority shall specify that the offender make payment within a period of between one and six months. It may stipulate payment by installments and on request may extend the period allowed.

2 If there is justified suspicion that the offender will fail to pay the monetary penalty, the executive authority may request immediate payment or the provision of security.

3 If the offender fails to pay the monetary penalty within the specified period, the executive authority shall instruct the debt collection proceedings provided their success is expected.

An academic paper analyzing how this system, established in the year 2007 plays out in practice and how it impacts offenders can be found here. The abstract to the paper states:

In 2007, a new Swiss Criminal Code became legally effective in which short prison sentences were to a large extent replaced by income-based day-fines. In addition, flat fines (fixed sums ranging from 1 to 10,000 Swiss francs) became more widely available as additional sanctions. Both fines and day-fines are to be converted into custody if they remain unpaid. Several thousand defendants are affected by such a conversion every year, but no systematic information has been collected on these cases. In order to fill this gap, the Department of Justice of the Canton of Zurich commissioned an evaluation on how often, under what circumstances and against what type of defendants monetary penalties are converted into custody. To this end, 447 case files were analyzed and a sample of 106 defendants serving a monetary sanction in prison were interviewed. Staff members and officials in charge of collecting monetary penalties were also interviewed. The results show that the most defendants serving monetary penalties in prison are confronted with multiple problems of integration. A second group were sentenced to substantial amounts of flat fines or day-fines that they or their networks were unable to pay.

The general concept of a day-fine, and the related history of this kind of penalty for committing crimes can be found here.

Many civil law countries, like Switzerland does, authorize fines much greater than those that are typical in the United States, and base the amount of the fine on the ability of the convicted offender to pay as well as on the seriousness of the crime.

Some statistical data about the penalties actually imposed for theft convictions in Switzerland can be found here along with discussion of why Switzerland imposes the penalties that it does.

A non-citizen could also be deported in some circumstances per Article 66a of the Swiss Criminal Code and related articles.

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  • Thanks, I completely forgot about those daily penalties. Would be hard to calculate a daily "income" for somebody earning his living on theft, though...
    – PMF
    Jun 23 at 5:29
  • @PMF Possibly. It depends a lot upon detailed information particular to the offender in question. The punishment for a nearly homeless vagrant and the punishment for a rebellious college dropout who has inherited a lot of farmland that only produces income a few times a year that was exhausted due to poor financial management and turned to stealing as a result would be very different.
    – ohwilleke
    Jun 23 at 22:41
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Sounds about right

Not specific the Switzerland.

Bob will probably be liable for interest on the money which is usually a set rate that may be different for pre an post judgement. This is usually higher than current commercial rates.

Criminal courts can and do order restitution so the civil trial may not be needed - the criminal court orders Bob to pay back the victim.

Bob may also be subject to proceeds of crime laws. These allow the government to take stuff from Bob where he cannot explain how he got it legally. This is usually a civil prosecution with a lower standard of proof. So Bob may lose the car he bought with the stolen money even if he doesn’t get convicted.

Also, Bob would be wise to hire a lawyer - they charge fees.

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  • Good point that he has to pay his own lawyer, too.
    – PMF
    Jun 23 at 5:27

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