More Than Enough Forgiving & Forgetting? Statutes of Limitation in Switzerland

Abstract

Traditionally, Swiss law has aimed to forgive and forget a wrongful act after a certain passage of time. But its long-accepted statutes of time limitation have come under pressure, both from popular initiatives (“Volksinitiativen”) and international regulations aiming at prolonging time-bars – in particular, regarding sexual offences against minors – and the Rome Statute’s demand that core crimes not fall under time limitation. In practice, the legal battle over criminal charges in asbestos cases has revealed doctrinal and policy-making issues. In Switzerland, criminal negligence that causes harm only many years later can fall under the statute of limitation before the criminal act – technically speaking – is actually committed, because the statute of limitation is linked to the action taken by the alleged perpetrator, not to the manifestation of harm. This legal set-up appears inadequate when one takes the victim’s point of view, from which the harm inflicted ought to give rise to prosecution. The fact that the perpetrator may have even changed over the period of time does not undo the inflicted harm. To resolve such axiological ambiguity, policy decisions are needed.