- The decisive factor for qualification as an offense is the statutory penalty range, not the fine actually imposed.
- The FAC dismissed the expungement appeal because the fine of CHF 1,500 does not change the penalty range of an offense.
- The total revision of the Criminal Records Act (from 23.1.2023) provides for a reduction in fines for probation within a two-year probation period.
The BVGer had in the Judgment A‑481/2022 to judge a case in which a Criminal record entry for a violation of the Aliens and Integration Act (AIG) was under discussion. The complainant had been sentenced to a fine for violation of Art. 116 AIG. Fine of CHF 1’500 (facilitation of unlawful entry, exit and residence). This offense is punishable by imprisonment of up to one year or a fine, although in minor cases only a fine may be imposed (para. 2).
The complainant had unsuccessfully Deletion of the corresponding entry from the criminal record because the fine of CHF 1,500 was below the threshold of CHF 5,000 at which an entry is made in the case of fines pursuant to Art. 3 para. 1 lit. c no. 1 of the VOSTRA Ordinance. The FAC dismisses the appeal. According to Art. 10 para. 3 StGB – here in conjunction with. Art. 333 para. 1 – misdemeanors are acts “punishable by imprisonment for a term not exceeding three years or by a fine. are threatened”. For this qualification The decisive factor is not the penalty imposed, but rather the penalty.frame.
It is well known that this can lead to shocking results. Thus the Federal Council in its response to the Question Steinemann – Entry in the criminal record and deletion periods (16.1048):
It is true that there are constellations where the judge can only pronounce a fine as a sanction for a crime or misdemeanor. […] Fines are therefore only provided for crimes or misdemeanors where the offender is to be “privileged”. This privileging should also be expressed in the period of appearance in the private extract. However, the current criminal record regulation (Art. 371 StGB) does not take this fact into account, as the following example shows
If a person is sentenced to only a fine for a misdemeanor, the sentence appears 6.6 years (two-thirds of ten years) in the private abstract.
However, if a person receives a conditional or partially conditional sentence for an offense that is more serious in the specific case, the sentence is no longer visible in the private statement already after the expiration of the probationary period of two to five years ordered in the sentence, provided that this person has proven himself or herself during the probationary period.
This problem is fixed within the Total revision of the criminal records law. According to Art. 40 para. 3 lit. c of the new Criminal Records Act applies:
Swiss basic sentences that contain only a fine imposed for a felony or misdemeanor no longer appear in the extract if the sentenced person has served a probationary period of 2 years; however, they shall appear at least until the end of any expulsion ordered in the basic judgment and at least until the expiry of any prohibition of activity imposed in that judgment or later in accordance with Article 67 paragraph 1 SCC or Article 50 paragraph 1 MStG; the probationary period shall commence when the judgment is opened and probation shall exist as long as no new felony or misdemeanor falls within the probationary period.
The Criminal Records Act valid from 23 January 2023. Against this background, the FAC did not see any gap that could have been closed in favor of the complainant by interpreting the StGB or the VOSTRA Ordinance accordingly.