Domestic Violence in Switzerland
Domestic violence is not uncommon in Switzerland. According to the Federal Statistical Office, there were almost 20,000 cases of domestic violence registered by the police in 2019 alone, as well as more than 40,000 consultations and emergency assistance requests falling within the framework of victim support....
Domestic violence is not uncommon in Switzerland. According to the Federal Statistical Office, there were almost 20,000 cases of domestic violence registered by the police in 2019 alone, as well as more than 40,000 consultations and emergency assistance requests falling within the framework of victim support. More women than men are affected.
Since the beginning of the Corona pandemic in March 2020, there has been an increase in cases of domestic violence in some cantons. This can primarily be attributed to the restricted freedom of movement and the lack of oases to compensate for this restricted movement, which can lead to tension and even domestic violence in conflict-ridden families. The Lucerne Victim Counseling Center recorded an increase in counseling sessions of around 9% from January to the end of October 2020, with a striking increase in May and June, following the lockdown. In addition, the number of unreported cases is presumably high. This is because people affected by violence have little to no opportunity to get help if their partners are around 24/7 (e.g., home office or quarantine). Children also had fewer opportunities to report domestic violence when the schools were closed.
2. Definition of Domestic Violence
There is no one-size-fits-all definition of domestic violence. One possible definition can be found in the so-called Istanbul Convention, which is the Council of Europe agreement, ratified by Switzerland, on preventing and combating violence. According to the Convention, domestic violence includes all forms of physical, sexual, psychological or economic violence that occur within the family or the household or between former or current spouses or partners, regardless of whether the individual perpetrating the violence has or has had the same place of residence as the person affected by violence (Art. 3 lit. b Istanbul Convention). Domestic violence can manifest itself in a wide variety of forms, such as hitting, slapping, kicking, sexually harassing, neglecting, withholding money, threatening, prohibiting contact, etc.
3. Criminal and Civil Law Options for the Individual Affected by Violence
Individuals affected by domestic violence have various criminal and civil law options at their disposal. In addition to the legal options for action, an individual affected by violence can also turn to victim support centers as well as to protective institutions (depending on gender, to women’s or men’s shelters) at any time.
3.1 Criminal Law
The Criminal Code (StGB) contains a large number of possible applicable offences in cases of domestic violence.
These include criminal acts against life and limb such as assault (Art. 126 SCC), simple or serious bodily harm (Art. 123 No. 1 or Art. 122 SCC) or intentional homicide (Art. 111 SCC), but also relate to defamation offences (Art. 173 ff. SCC), felonies and misdemeanors against freedom (Art. 180 ff. SCC) or criminal acts against sexual integrity (Art. 187 ff. SCC).
In the case of offences in the StGB, a distinction is made between application offences for which a complaint has been made and official offences requiring public prosecution. An application offence is only prosecuted when a corresponding criminal complaint has been received, whereby a person affected by domestic violence is entitled to file a complaint (Art. 30 ff. StGB). Official offences requiring public prosecution take place ex officio. A large number of the aforementioned offences are offences requiring public prosecution, provided that the offence occurred within the marriage or partnership (see, for example, Art. 123 No. 2 Para. 3-5 SCC on simple bodily injury). In the case of official offences requiring public prosecution, the person affected by violence only has to file a complaint with the police. A formal criminal complaint is not necessary, as the offence is prosecuted ex officio.
3.2 Civil Law
Civil law also provides an individual affected by violence with options for her or his protection.
According to Art. 28 of the Civil Code, any individual whose personality rights have been unlawfully violated can appeal to the court for protection against anyone who has participated in the violation. Article 28b of the Civil Code provides protection for victims of violence, threats or stalking by means of court-ordered restraining orders. The legal provision also allows for a temporary expulsion of the perpetrator of violence from the jointly occupied dwelling (expulsion request).
In order to enforce the protective norm in Art. 28 of the Civil Code, the relationship of the persons concerned must be taken into account. If the perpetrator of the violence is the spouse, an application for (provisional) marital protection measures must be filed with a competent court. If it is not the spouse, the individual affected by the violence has the possibility to apply for precautionary or provisional measures (Art. 261 ff. ZPO). Precautionary measures serve to settle a legal situation provisionally. Provisional measures are precautionary measures which, due to particular urgency, are ordered by the court immediately – without first hearing the other party. Precautionary measures as well as marital protection measures can be used, for example, to apply for the allocation of the marital home, entry bans,, custody regulations or contact bans (especially in the case of common children).
In addition, an endangerment report to the Child and Adult Protection Authority (KESB) is possible at any time. The endangerment report can be made, for example, by a school teacher or a neighbor, provided that the physical, mental or social well-being of a child or adult is at risk.
-MLaw Leutrime Asani, Attorney at Law at Studhalter & Meier Rechtsanwälte AG
-MLaw Chiara Boccato, Legal Intern at Studhalter & Meier Rechtsanwälte AG