Regulation on the Enforcement of Sentences in the Form of Public Utility Work (Public Utility Work Regulation) (GA)

1 The conditions for the granting of community service (CS) are defined by Article 79a SCC.

2 CS is admissible for custodial sentences, fines [3], and monetary penalties.

3 CS is not admissible if the fine or monetary penalty has not been paid and the enforcement of a substitute custodial sentence has been ordered [4].

Description

[3] CS does not apply to order fines. If the convicted person does not pay the order fine immediately or within the set deadline, it becomes subject to ordinary criminal proceedings. The order fine imposed in ordinary criminal proceedings remains reserved (cf. Arts. 6 and 14 of the Federal Act of 18.03.2016 on order fines).

[4] Cf. Art. 79a para. 2 SCC. This exclusion is also valid when substitute custodial sentences must be enforced concurrently with custodial sentences.

1 The UWC must be performed for the benefit of social institutions, public utility organizations, or persons in need.

2 The convicted person performs the UWC during their free time.

3 It is not remunerated.

1 Four hours of Public Utility Work (PUW) performed correspond to one day of custodial sentence, one daily fine unit, or one day of substitute custodial sentence in the case of a contravention [5].

2 If the sentence is pronounced in months, one month corresponds to thirty days, or 120 hours.

[5] Public Utility Work may also substitute for a fine for a contravention. However, it is not possible for a convicted person to serve, in this form, a substitute custodial sentence that they must serve because they have not paid a financial penalty or a fine (cf. Message, FF 2012, p. 4201).

1. **Admission to LUP** (Leave Under Penalty) is subject to the condition that the pronounced sentence or the total duration of the sentences executable simultaneously

a) is less than or equal to 6 months; pre-trial detention or detention for security reasons is not considered in the calculation (gross principle) [6];

b) is greater than 6 months but, taking into account pre-trial detention or detention for security reasons, a maximum of 6 months remains to be served (net principle) [7].

2. For sentences with partial conditional suspension, the unconditional part is decisive for the application of paragraph 1.

[6] The gross principle means that the assessment of the temporal conditions is based on the duration of the pronounced sentence, without deducting any detention already served.

[7] The net principle means that the assessment of the temporal conditions is based on the duration of the pronounced sentence, including any detention already served.

If, after the revocation of conditional release, one or more remaining sentences must still be executed, the following elements are determinative for calculating the duration of the sentence

a) the remaining sentence, if the judge has not imposed a single sentence;

b) the total sentence, if the judge has imposed a single sentence.

The following conditions must be met to benefit from the LUP

a) formal request from the convicted person;

b) exclusion of the risk of escape;

c) exclusion of the risk of recidivism;

d) authorization of residence in Switzerland;

e) no expulsion under Articles 66a and 66a bis SCC;

f) authorization by the convicted person to inform the employer [8] of the offense that led to the sanction;

g) ability to comply with the framework conditions set by the enforcement authority and the organization employing the convicted person.

[8] An employer for the purposes of these regulations is any institution or person with whom a convicted person carries out an LUP.

The enforcement authority

a) informs the convicted person of the modalities of this form of enforcement;

b) grants the convicted person a deadline for submitting the application for this particular form of enforcement;

c) examines the convicted person's application and the documents produced;

d) decides on the application and, in case of acceptance, determines the place and commencement of the enforcement as well as the conditions to which the convicted person is subject.

1 The convicted person must provide, upon request by the executing authority, all documents and information useful to support their application.

2 In particular, the convicted person of foreign nationality shall submit a certificate of their right to reside in Switzerland.

1 If the convicted person does not meet the conditions for benefiting from LUP, the authority may grant them an additional period to request another form of execution.

2 This possibility is excluded in cases of abuse, failure to comply with the obligation to cooperate and communicate, non-observance of deadlines, transmission of incomplete documents, and in the presence of circumstances that a priori exclude a facilitated form of execution.

1 The authorization of community service (LUP), or the agreement between the enforcing authority, the convicted person, and the employer, shall regulate in particular

a) the nature and duration of community service;

b) the community service work plan, including the start of the activity and working hours;

c) the supervision of community service, the communication of non-compliance with the work obligation, and the announcement of the end of employment.

2 The convicted person shall perform at least eight hours of community service per week.

3 The duration of travel from home and meal times shall not be considered in the calculation of community service execution hours.

1. Should the convicted person be unable to comply with the imposed conditions, they must immediately notify the competent authority.

2. Furthermore, they shall promptly inform the competent authority of any change in their personal circumstances.

1 During the execution of the LUP, the authority verifies that the convicted person performs the activity assigned to them.

2 To this end, it takes all measures it deems useful. In particular, it may, at any time, visit the convicted person’s place of employment.

3 The authority may delegate its competence to another authority.

1 The accumulation of a substitute custodial sentence for a fine or pecuniary penalty during the execution of the LUP generally implies the interruption of the LUP.

2 If the convicted person no longer meets the personal conditions for the LUP or waives them, the LUP is interrupted. The balance of the custodial sentence is executed in the ordinary form or under a semi-detention regime, if the person meets the conditions for it. If applicable, the pecuniary penalty or fine is recovered.

The authority may warn the sentenced person who fails to comply with the conditions of LUP or who, in any other way, betrays the trust placed, in particular if

a) they do not perform the work within the agreed terms;

b) they possess or consume narcotic substances;

c) they do not respect the rules or an obligation that has been imposed upon them.

1. If, despite a formal warning, the convicted person persists in their behavior, the authority may revoke the LUP and order, with immediate effect, the execution of the remainder of the sentence under an ordinary regime or, if the conditions are met, in the form of semi-detention. If applicable, the pecuniary penalty or fine shall be recovered.

2. In serious cases, immediate revocation may be ordered instead of a warning.

1 The competent authority may, for serious reasons or as a precautionary measure, provisionally suspend the LUP.

2 In the event of a remaining custodial sentence, enforcement shall immediately continue under the ordinary regime.

3 A decision on the merits shall be issued within 10 days.

Should a criminal investigation be opened against the convicted person during the execution of the LUP, the latter may be suspended or revoked.

If several penalties must be served, the house arrest (LUP) carried out is usually computed against the penalties that will lapse first.

1 The payment of fines and pecuniary penalties is computed according to the express will of the convicted person. In the absence of an explicit declaration, the authority opts for the solution most favorable to the convicted person.

2 It is possible to derogate from this rule if the statute of limitations is approaching. In such a case, payments are computed on the fines or pecuniary penalties that are due to lapse first.

The convicted person bears the costs associated with the execution of the LUP, namely travel expenses between their domicile and place of work, and meal expenses.

1. A person performing community service (LUP) as an alternative to a custodial sentence may be eligible for conditional release according to the provisions relating to conditional release from ordinary execution, with the following specificities

a) The execution data are calculated based on the hours of work performed, converted into days of execution;

b) The report from the facility management is replaced by the work hour control grid and, if applicable, by the evaluation of work quality.

2. The rules of conditional release do not apply to community service (LUP), or to the part of community service (LUP), performed as an alternative to the payment of a fine or a monetary penalty.

1 This Regulation shall enter into force on 1 January 2018.

2 The Conference invites the governments of the cantons of Latin Switzerland to adapt their cantonal regulations concerning the execution of a sentence in the form of community service.

3 This Regulation shall also apply to sentences pronounced before its entry into force, but whose execution has not yet commenced.

4 It shall be published on the Conference's website and by each canton according to its own procedure.

The Secretary General: Blaise Péquignot The President: Béatrice Métraux

State Councillor

Published in BU 2017, 507.