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22 Can. B. Rev. 870 (1944)
Swiss Criminal Law (Continued)

handle is hein.journals/canbarev22 and id is 882 raw text is: 870 ENGLISH STUDIES IN CRIMINAL SCIENCE SWISS CRIMINAL LAW (Continued) PART III. 21. In what cases and to what extent can criminal legislation operate retrospectively? If so, what instances of this have there been in the period 1920-1939? The Swiss Criminal Code applies to all crimes and medium offences which have been committed after the Code had come into force. If a crime or medium offence has been committed before it had come into force, but if the trial takes place after it had come into force, the law which is more favourable to the accused must be applied (Article 2 StGB). As far as indeterminate sentences (measures de stretg, Sicherungsmassnahmen) are concerned, their nature excludes the question whether the law which is more favourable to the accused must be applied; only that law must be applied which is in force at the time when the sentence is passed. 22. To what extent has a tribunal discretion to declare as criminally punishable an act or omission not specifically covered by the penal code in force at the time of that act or omission? It is a principle of Swiss Law that old laws do not operate after they have been abrogated and that new laws have no retro- active effect. As an exception, the law which is more favourable to the accused applies retroactively (see No. 21). Thus the courts have no powers to punish in respect of acts which were not punishable when the act was committed. This rule follows also from the principle: nulla poena sine lege (Article 1 StGB). 23. To what extent has a tribunal discretion to sentence an offender to a punishment (whether as regards kind or measure) which is not specifically mentioned by the penal code in force, or if mentioned, is not expressed to be applicable to the offence committed? The principle nulla poena sine lege applies in particular to the kind and measure of the penalty to be imposed in each indivi- dual case. Only those may be punished who commit acts which are expressly declared punishable by law (Article 1 StGB). Consequently, the courts must never impose penalties which are not provided by law for the particular act in question or which exceed the limits laid down by law.

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