Author: Lawyer Enrico Germano
The Council of State of the Canton of Ticino has endorsed the project of the Commission for Legal Affairs of the National Council, the Swiss Chamber of Deputies, to create a new specific criminal law in relation to the growing and highly topical phenomenon of stalking, which defines vexatious behaviour with the intent to intentionally and repeatedly persecute and harass a person, often a woman, threatening her safety and seriously affecting her lifestyle. The expression stalking comes from English and means to stalk or sneak up on one’s prey.
Until now, the constituent elements of this new offence were included in certain offences that already existed in the Swiss Criminal Code (SCC), such as those of bodily harm (Art. 122-123 SCC), criminal mischief (Art. 126 SCC), damage (Art. 144 SCC), offences against honour such as defamation, slander and insult (Art. 173-177 SCC), violation of the secret or private sphere by means of image-taking devices (Art. 179 quater SCC), abuse of telecommunications equipment (Art. 179 septies SCC), threatening (Art. 180-177 SCC), and violation of the right to privacy (Art. 179 septies SCC). 173-177 SCC), violation of the secret or private sphere by means of image-taking devices (Article 179c SCC) abuse of telecommunications equipment (Article 179 quater SCC), threatening (Article 180 SCC), coercion (Article 181 CP), trespassing (Article 186 SCC), sexual coercion (Article 189 SCC) and sexual harassment (Article 198 SCC).
The Council of Europe Convention of 11 May 2011 on Preventing and Combating Violence against Women and Domestic Violence, signed by most European countries (Istanbul Convention; SR 0.311.35) already defines stalking in Article 34 as “intentional and repeatedly threatening behaviour towards another person, causing that person to fear for his or her safety*.
The Federal Office for Equality between Men and Women of the Federal Department of Home Affairs had specified that stalking had the following recurring features:
– it starts with a specific person, – consists of several actions repeated over time, – is characterised by behaviour perceived by the victim as unwelcome and intrusive, – instils fear or concern in the victim, and- threatens or harms the victim psychologically, physically and/or socially .
In a ruling by the Federal Supreme Court on 2 December 2015 , the legislator had precisely refused to add the offence of obsessive harassment (‘stalking’) to the Swiss Criminal Code on the grounds that its constituent elements are usually already punishable individually.
In another ruling by the Federal Supreme Court on 6 June 2018, the legal consequence of a violation of personality in the sense of Article 28b of the Swiss Civil Code (CC) is that the victim is entitled to measures to protect his or her personality, even if the violation has ceased. It is possible to prohibit contact with persons other than the victim, regardless of whether they have been contacted in the past or not. The purpose of personality protection measures also includes protection from indirect harm. Finally, Art. 28b CC does not set a time limit for personality protection measures; it is up to the judge to decide whether a limited duration is justified or not.
In a further recent judgment, also by the highest Swiss court of 17 November 2020, the Federal Supreme Court had first recalled that, in the absence of a specific provision punishing stalking or obsessive harassment, the application of Art. 181 of the Swiss Criminal Code, the one concerning the offence of coercion, to this type of conduct presupposes, on the one hand, that the conduct in question compels the victim to act, tolerate or omit an act and, on the other hand, that this can be understood as the result of a more precisely circumscribed method of coercion.
1 La Regione, 28 settembre 2023
2https://www.skppsc.ch/it/temi/violenza/stalking/, Prevenzione Svizzera della Criminalità
3 Dipartimento federale dell’interno DFI, Ufficio federale per l’uguaglianza fra donna e uomo UFU, giugno 2020
4 Dipartimento federale dell’interno DFI, Ufficio federale per l’uguaglianza fra donna e uomo UFU, giugno 2020
5 ATF du 2 décembre 2015, 141 IV 437
6 ATF du 6 juin 2018, ATF 144 III 257, ATF 13 avril 018, 5A_429/2017
7 ATF du 17 novembre 2020, 6B_251/2020, consid. 1.2