I. Scope of application

1 The purpose of Art. 11 is to establish the principle of criminal liability for attempt and participation in relation to the offenses defined in the Convention. Para. 1 assumes that intentional participation in an intentional criminal offense pursuant to Art. 2-10 is punishable and sanctionable both in the sense of aiding and abetting and incitement.

2 Para. 2 already limits this to Art. 3-5 as well as Art. 7, 8 and 9 para. 1 lit. a and c of the Convention. This limitation of attempted criminal liability to the listed offenses can be implemented by the contracting parties in such a way that attempted criminal liability is waived in whole or in part (para. 3).

3 Switzerland has not made use of the possibility of limiting para. 3 and therefore provides for attempted criminal liability by linking it to the General Part of the Criminal Code.

II. Criminal liability for participation (Art. 11 para. 1)

4 Art. 11 para. 1 provides for criminal liability for participation for Art. 2-10. Unlike in the General Part of the SCC (Art. 24 and 25 SCC), no distinction is made between incitement and aiding and abetting. Since the implementation of para. 1 was carried out directly via the provisions of the General Part of the SCC, the form taken there, for example with regard to attempted criminal liability (Art. 24 para. 2 SCC), also applies to the scope of application of the Convention and the corresponding implementation. Objective requirements that go beyond Art. 24 and 25 SCC are not given and therefore the implementation via these articles is also congruent here.

5 The double intent to participate provided for in para. 2 with regard to the act of participation and the main offense is also required by the provisions of the General Part, so that no additions were necessary here.

6 Reference should be made to the addition to the criminal provision of Art. 143^bis SCC. For details, please refer to the corresponding commentary on Art. 6. With regard to the question of participation and attempt, it should be emphasized that even after the addition of Art. 143^bis SCC, attempted aiding and abetting of a principal offence that has not (yet) been attempted remains unpunishable.

III. Attempted criminal liability (Art. 11 para. 2 and para. 3)

7 Para. 2 provides for the obligation to extend attempted criminal liability to the named provisions. Neither objective criteria are mentioned, nor is a general attempt punishability provided for. The latter in particular is due to the fact that the legal systems of some contracting parties do not stipulate a general, but a graduated attempted criminal liability. The provision thus promises an implementation option that can be (and has been) implemented without major distortions in the fundamental legal concepts of the contracting states.

8 The implementation of attempted criminal liability was carried out via Art. 22 in conjunction with Art. 10 para. Art. 10 para. 2 and para. 3 SCC. It thus extends to all of the offenses named in para. 2. This follows from the fact that their implementation is in turn carried out by means of criminal offences in the Special Part of the SCC, which are themselves at least offences within the meaning of Art. 10 para. 2 SCC.

9 Although para. 2 does not contain any obligation to extend the criminalization of attempts to provisions not named in para. 2, the implementation via articles of the Criminal Code means that there is also criminalization of attempts in Switzerland with regard to Art. 2, Art. 9 as a whole and Art. 10 CCC. In particular, by including the documentary offenses (Art. 251 et seq. SCC), the offenses for the protection of postal and telecommunications secrecy (Art. 321^ter SCC) and the pornography article (Art. 197 SCC), which in turn are at least structured as misdemeanors, an implementation took place that entails attempted criminal liability for Art. 2-10. Therefore, there is no dissonance with the principle of attempted punishment for misdemeanors and felonies in Swiss criminal law.

10 Para. 3 provides for the possibility of the contracting parties to waive attempted criminal liability in whole or in part. This provision is intended to counter any implementation difficulties on the part of the contracting parties. The scope for implementation granted in this way should, where possible, allow ratification to take place without fundamental changes to the respective legal system. In Switzerland, no use has been made of this possibility, not even with regard to individual elements or parts thereof. This is convincing in terms of content, as it does not involve a break with the understanding of attempted criminal liability in Switzerland. The provision in para. 3, which is ultimately to be understood as a concession to the practicability of implementation with regard to the legal systems of the contracting parties, has therefore been left without consequence in Switzerland.

Materials

Botschaft über die Genehmigung und die Umsetzung des Übereinkommens des Europarates über die Cyberkriminalität vom 18.6.2010, BBl 2010 4697 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2010/813/de, besucht am 17.10.2023

Europarat, Explanatory Report to the Convention on Cybercrime, Budapest 23.11.2001, abrufbar unter https://rm.coe.int/16800cce5b, besucht am 17.10.2023 (zit. Explanatory Report)