Author: Lawyer Enrico Germano
The offence of coercion is provided for in Article 181 of the Swiss Criminal Code (hereinafter CP) and states that “Any person who, by the use of force or the threat of serious detriment or other restriction of another’s freedom to act compels another to carry out an act, to fail to carry out an act or to tolerate an act, shall be liable to a custodial sentence not exceeding three years or to a monetary penalty”.
The victim’s freedom of action and decision is protected by law and in accordance with existing case law, “the offence of coercion is perfected when the victim had to initiate or has being subjected to what the offender wanted, i.e. when the offender has put in place means of pressure that have influenced the victim’s will. The threat is an instrument of psychological pressure consisting of the prospect of harm, implying that its realization depends on the will of the offender. However, it is not necessary that the offender can actually influence the occurrence of the harm”1. Case law also recalls that from a subjective point of view, the crime of coercion presupposes that the offender acted with intent, i.e. “with the knowledge and intent to use a coercive means to induce the victim to adopt a certain behavior”2.
In view of the issuance in recent years of summons for payments by creditors against debtors, with disproportionate amounts, even exceeding one million Swiss francs, and without any connection to a claim that could be considered justified, recent case law has intervened, specifying that the prerequisites of attempted coercion exist when the means of the summons for payments is used disproportionately to exert pressure in an abusive manner and contrary to public morality: “It is certainly lawful to serve a summons for payments on someone against whom a claim can be made. It is, on the other hand, clearly abusive and thus unlawful to use it as a means of pressure. With particular regard to summons for payments, the Federal Supreme Court has already had occasion to establish that, for a person of average sensibilities, being the subject of a summons for payments for a large sum constitutes, like a complaint, a source of torment and a psychological burden, due to the inconveniences associated with the enforcement procedure as such and the prospect of having to pay the sum in question. Such an enforcement order is therefore likely to induce a person of average sensibilities to yield to the pressure and thus substantially impede his freedom of decision or action“3.
This jurisprudential orientation was confirmed in a recent decision of the Federal Supreme Court of 18 March 2022, in which two companies in the Canton of Valais were in a business relationship and had concluded a contract for the purchase of fish products. The purchasing company had refused to pay the six outstanding invoices of the selling company for a total amount of CHF 29.894.65, considering them to be 28% too expensive, and had served a summons for payment to the selling company for an amount of CHF 50.000.– as damages4.
Case law also points out that even a legal person (a legal entity and not just a natural person), whose exercise of its will has been impaired, can be considered injured by the offence of coercion, and in the present case the acquiring company was held responsible for the offence of attempted coercion. The Federal Supreme Court pointed out in conclusion that the issuing of a summons for payments for CHF 50.000.– in damages was unlawful. In fact, 28% of the total amount of the six invoices corresponded to the amount of CHF 8.370,50, and the issuance of a summons for payments for CHF 50.000.– in damages, i.e. six times the amount of the excess invoice, was considered excessive, disproportionate and without any justification: “Furthermore, the appellant had complained of an overcharge of around 28%. Applied to the sum of CHF 29,894.64 corresponding to the six unpaid invoices, the amount overcharged was CHF 8,370.50. From this point of view too, the amount claimed of 50,000.– Swiss francs – i.e. almost six times as much – is not sufficient. – 50000.– – i.e. almost six times as much – as ‘damages’ was excessive, disproportionate and without foundation”5.
1 Court of Appeal and Criminal Review of the Canton of Ticino of 2 December 2014, number 18
2 Federal Supreme Court decision, DTF 134 IV 216 consid. 4.1
3 Decision of the Federal Supreme Court of 12 August 2020, 6B_705 / 2020, in particular section 2.3
4 Decision of the Federal Supreme Court of March 18, 2022, 6B_1082 / 2021, point 2.2.2
5 Decision of the Federal Supreme Court of March 18, 2022, 6B_1082 / 2021, point 2.2.1