Article 123b BV makes sexual and pornographic offences against children before puberty non-prescriptible. This means: These perpetrators can be prosecuted and punished their entire lives, even after decades.
Who is affected? Affected are perpetrators of sexual acts (such as abuse or rape) and pornographic offences against children under 12 years of age. Following implementation in the Criminal Code (Art. 101 para. 1 lit. e StGB), this age limit applies strictly – regardless of when a child actually enters puberty. The provision stems from a popular initiative that was adopted in 2008, as the Federal Council's message shows (BBl 2007 5369).
Legal consequences: Unlike other offences, there is no time limit for prosecution or punishment. Normally, criminal offences become time-barred after a certain period – this rule is broken here. However, the Federal Supreme Court has clarified that proceedings already discontinued cannot be reopened (BGE 141 IV 93). According to BSK BV-Göksu (N. 2), the constitutional provision is directly applicable, while SG Komm BV-Vest (N. 2) emphasises the specification by the Criminal Code.
Example: A 30-year-old abuses an eight-year-old child. Even if the act is only discovered 40 years later, he can still be prosecuted and punished. For other serious offences, prosecution would long since be time-barred.
Special feature: After 30 years, the court may mitigate the penalty (Art. 101 para. 2 StGB). However, this is not an automatic right – it depends on the individual case (BGE 140 IV 145). Victims' claims for damages also practically no longer become time-barred, as Schöbi explains (Festschrift SGHVR 2010, 519 ff.).
The rule shows how important the protection of children is in the Swiss legal system. It ensures that even late discovery of abuse can still have consequences.
N. 1 The popular initiative «for the imprescriptibility of pornographic crimes against children» was submitted on 1 March 2006 with 119,375 valid signatures (BBl 2006 3657). The Federal Council recommended rejection of the initiative in its message of 29 June 2007, as it considered the existing limitation periods sufficient and raised constitutional concerns regarding the prohibition of retroactivity (BBl 2007 5369, 5379 ff.). On 30 November 2008, the people and cantons accepted the initiative with 51.9% yes votes and 13 5/2 cantonal votes (BBl 2009 605). The implementing provisions in the Criminal Code (Art. 101 para. 1 lit. e and para. 3 CC) entered into force on 1 January 2013 (AS 2012 2575).
N. 2 Art. 123b Cst is systematically positioned between Art. 123a Cst (preventive detention) and Art. 123c Cst (prohibition of activities for sexual offences) in Title 8 on the judiciary. The provision represents a breach of the general criminal law limitation system and creates an absolute exception from the limitation principle for a specific group of offenders and type of offence. It stands in tension with the prohibition of retroactivity (→ Art. 7 ECHR) and the general resocialisation principle of criminal law.
N. 3 The provision has close connections to Art. 11 Cst (protection of children and young people) and Art. 35 para. 3 Cst (realisation of fundamental rights by private individuals). In the context of victim protection provisions (→ Art. 124 Cst), it forms another building block of enhanced constitutional protection of children from sexual abuse. The provision also stands in systematic connection with the limitation provisions of the Criminal Code (Art. 97 ff. CC).
N. 4 The elements of the offence comprise three constitutive elements: (1) sexual or pornographic crimes, (2) against children, (3) before puberty. According to the implementation in Art. 101 para. 1 lit. e CC, «sexual crimes» are the offences under Art. 187 (sexual acts with children), 189-191 (sexual coercion, rape, defilement), 195 (exploitation of a position of distress) and 196 CC (sexual acts with persons in dependent relationships). «Pornographic crimes» include acts under Art. 197 para. 4 CC (hard pornography involving children) within the scope of application.
N. 5 The concept «children before puberty» is concretised by Art. 101 para. 1 lit. e CC as children under 12 years of age. This rigid age limit replaces the biological-individual criterion of puberty with a normative determination. Göksu (BSK BV, Art. 123b N. 3) points out that this concretisation was necessary for reasons of legal certainty, as the individual onset of puberty would be difficult to establish in criminal proceedings.
N. 6 The constitutional provision orders the absolute imprescriptibility of both criminal prosecution and punishment. This means that neither the limitation of prosecution (Art. 97 CC) nor the limitation of execution (Art. 99 CC) can occur. Göksu (BSK BV, Art. 123b N. 2) emphasises the direct applicability of the constitutional provision, even though Vest (BSK BV, Art. 123b N. 2) rightly points to the necessary specification by Art. 101 lit. e CC.
N. 7 Imprescriptibility does not lead to the complete elimination of any temporal limitations: According to Art. 101 para. 2 CC, the court may reduce the penalty if 30 years have passed since the act. This provision takes account of the idea that even for the most serious crimes, the need for punishment may diminish over time (BGE 140 IV 145 E. 2.3).
N. 8 For liability law, according to Schöbi (Festschrift SGHVR 2010, 519 ff.), there are also consequences: The civil law limitation under Art. 60 para. 2 CO is superseded by criminal law imprescriptibility, whereby compensation claims may also become practically imprescriptible.
N. 9 The question of retroactivity was hotly disputed. Frischknecht (ZStrR 2008, 434 ff.) argued against any form of retroactivity with reference to Art. 7 ECHR and the criminal law prohibition of retroactivity. Capus (FP 2009, 110 ff.) differentiated between true and false retroactivity and favoured application to acts not yet time-barred. The Federal Court followed a mediating solution in BGE 141 IV 93: proceedings already discontinued may not be reopened, but limitation periods still running are extended.
N. 10 The rigid age limit of 12 years is controversially discussed. Vest (SG Komm BV, Art. 123b N. 7) criticises that biological puberty occurs very differently in individuals and a normative determination contradicts the constitutional wording. Göksu (BSK BV, Art. 123b N. 3) defends the solution as a necessary compromise between legal certainty and victim protection.
N. 11 The admissibility under international law of the imprescriptibility provision is assessed differently. While Göksu (BSK BV, Art. 123b N. 4) recognises no violation of Art. 7 ECHR as long as no true retroactivity exists, critical voices see in the subsequent extension of limitation periods a problematic interference with the principle of legitimate expectations.
N. 12 When examining the applicability of Art. 123b Cst, the age of the victim at the time of the act must first be established. The 12-year limit applies absolutely, regardless of the actual onset of puberty. For serial acts with victims of different ages, each act must be examined separately.
N. 13 For acts before 30 November 2008, the following applies: if the act was already time-barred under the old law, it remains so (no true retroactivity). If limitation had not yet occurred, the period is extended or lapses entirely (BGE 141 IV 93).
N. 14 The penalty reduction after 30 years (Art. 101 para. 2 CC) is not an automatic consequence of the passage of time. The court must assess the specific circumstances, particularly the behaviour of the offender since the act and the gravity of the guilt. The general penalty reduction rule of Art. 48 lit. e CC is not applicable (BGE 140 IV 145).
N. 15 In civil proceedings, it should be noted that criminal law imprescriptibility influences the limitation of compensation claims under Art. 60 para. 2 CO. As long as a criminal conviction is possible, the civil law claims also do not become time-barred. This can lead to a de facto imprescriptibility of satisfaction and compensation claims.
#Genesis and Entry into Force of the Imprescriptibility Provision
BGE 141 IV 93 (10 February 2015)
Leading decision on the retroactive application of imprescriptibility rules.
In this landmark decision, the Federal Supreme Court ruled on the requirements for the resumption of discontinued proceedings following the entry into force of implementing provisions to Art. 123b BV.
«On 30 November 2008, the people and the cantons adopted the popular initiative 'For the imprescriptibility of pornographic offences against children' (imprescriptibility initiative). Art. 123b BV has since stipulated that the prosecution of sexual or pornographic offences against children before puberty and the penalty for such offences are imprescriptible. Based on this, the Federal Assembly issued implementing provisions, which entered into force on 1 January 2013.»
The Federal Supreme Court held that the retroactive amendment of limitation periods does not permit the resumption of proceedings that have already been definitively discontinued.
Decision BES.2013.72 (20 August 2014, Court of Appeal of Basel-Stadt)
Specification of the limits on resumption of criminal proceedings.
The Court of Appeal of Basel-Stadt confirmed the Federal Supreme Court's case law on the impossibility of resuming already discontinued proceedings.
«The offences charged to the appellant [had] been time-barred at the time of the discontinuation order according to the law applicable at the time, which is why the proceedings had to be discontinued.»
#Application of Imprescriptibility Rules and Mitigation of Sentence
BGE 140 IV 145 (27 November 2014)
Landmark decision on sentence mitigation for imprescriptible offences.
The Federal Supreme Court clarified the relationship between Art. 48 lit. e SCC (sentence mitigation due to lapse of time) and Art. 101 para. 2 SCC for imprescriptible sexual offences against children.
«For imprescriptible offences, Art. 101 para. 2 SCC determines the time from which the court may mitigate the sentence. Art. 48 lit. e SCC is therefore not applicable to imprescriptible felonies.»
The court clarified that for imprescriptible sexual offences against children under Art. 123b BV, the special rules of Art. 101 para. 2 SCC apply and not the general provision on sentence mitigation for lapse of time.
Decision 6B_479/2013 (30 January 2014, Federal Supreme Court)
Delimitation of the temporal applicability of imprescriptibility rules.
The Federal Supreme Court addressed questions on the application of the new limitation rules to old cases and the requirements for non-pursuit of criminal charges.
Decision SK 2016 83 (25 August 2017, Criminal and Measures Enforcement Court of Bern)
Practical application of sentence mitigation rules for sexual acts with children.
The court applied the principles from BGE 140 IV 145 and examined the requirements for sentence mitigation despite imprescriptibility.
«Under Art. 48 lit. e SCC, the court mitigates the sentence if the need for punishment is significantly reduced in view of the time that has elapsed since the offence and the offender has behaved well during this time. This provision is linked to the concept of limitation.»
Decision PE11.010972 (2 September 2011, Cantonal Court of Vaud)
Early application of Art. 123b BV before issuance of implementing provisions.
The Vaud Cantonal Court addressed the direct applicability of the constitutional provision before the entry into force of the statutory implementing provisions in the SCC.
Decision VB.2014.00008 (28 May 2014, Administrative Court of Zurich)
Delimitation from other imprescriptibility provisions in the administrative sphere.
The Administrative Court clarified that the misconduct in the specific case did not constitute predicate acts within the meaning of Art. 123c BV and thus Art. 123b BV was not applicable.
Decision SB170204 (7 December 2018, Superior Court of Zurich)
Practical implementation in case of multiple sexual offences against children.
The Superior Court of Zurich applied the imprescriptibility rules in a case involving multiple rapes, sexual coercion and sexual acts with children.
Decision SB130306 (8 April 2014, Superior Court of Zurich)
Transitional law between old and new legal situation for indecency offences.
The court examined the application of extended limitation periods for sexual acts with children in the transitional area.
«The limitation of prosecution for sexual acts with children within the meaning of Art. 187 SCC is measured - according to para. 4 of Art. 70 former SCC or Art. 97 para. 2 SCC - by the age of the victim.»