Child abduction, sentencing, state of necessity, and consequences of the act for the perpetrator

Swiss Federal Supreme Court, 02.25.2026, 6B_899/2025

Facts

In the context of a contentious separation, sole custody of the couple's two children, I.________ (born in 2011) and J.________ (born in 2014), was granted to their mother, G., by an emergency ex parte order dated October 13, 2023. This decision was prompted by the children's expressed sense of insecurity around their father, A., due to his angry and impulsive behavior. The father was granted visitation rights every other weekend.

During the first scheduled visit, from October 20 to 22, 2023, A.________, disagreeing with the court's decision, failed to return the children to their mother. He decided to take them to Spain, his home country, without the consent of the mother, who also holds parental authority.

To do so, he executed an elaborate plan: he lied to the police when they first located him using AirTags the mother had placed in the children's bags, promising to return them the following day. He sent deceptive messages to his ex-partner to buy time, while preventing the children from contacting her by removing the SIM cards from their devices. Informed of a new court order demanding the immediate return of the children, he refused to comply. He prepared for his flight by changing his vehicle's license plates, arming himself with multiple credit cards and cash, and taking secondary roads.

His flight ended on October 25, 2023, shortly before the Spanish border, following a 20 km pursuit by the French gendarmerie, who managed to intercept his vehicle.

Convicted at first instance for child abduction and sentenced to a 20-month suspended prison term and a fine of 1,000 CHF, A.________ saw his appeal rejected by the Vaud Criminal Court of Appeal. He then filed an appeal in criminal matters with the Federal Supreme Court.

Law

The Federal Supreme Court examined several grievances raised by the appellant:

1. Arbitrariness in the establishment of facts (Art. 9 Cst.): The Federal Supreme Court reiterated that it only intervenes if the facts have been established in a manifestly unsustainable manner. Appellate-style criticisms, in which the appellant merely contrasts their own version of the facts with that of the lower court without demonstrating arbitrariness, are inadmissible.
2. State of necessity (Art. 17 and 18 SCC) and putative state of necessity (Art. 13 SCC) :
   1. Justifiable necessity (Art. 17 SCC) justifies a punishable act if it is committed to protect a legal interest from an imminent danger that cannot be averted otherwise, and the interest protected outweighs the interest harmed.
   2. Excusable necessity (Art. 18 SCC) may exclude or mitigate culpability if, when faced with such a danger, the sacrifice of the threatened interest could not reasonably be expected of the perpetrator.
   3. For both cases, the conditions of imminent danger (actual and concrete) and absolute subsidiarity (the criminal act must be the only means of averting the danger) are cumulative.
   4. Putative necessity (Art. 13 SCC) applies if the perpetrator mistakenly believes they are in a situation of danger. They are then judged based on their erroneous assessment of the facts.
3. Waiver of punishment (Art. 54 SCC) : The authority may waive a penalty if the perpetrator has been so directly and severely affected by the consequences of their act that an additional sanction would be inappropriate. This provision, which aims to avoid a disproportionate penalty, is applied with great restraint for intentional offenses and requires a balancing of interests between the gravity of the fault and the consequences suffered by the perpetrator.
4. Sentencing (Art. 47 SCC) : The penalty is determined based on the perpetrator's culpability. The judge takes into account factors related to the act (Tatkomponente: gravity of the harm, reprehensibility, motives) and the perpetrator's situation (Täterkomponente: criminal record, personal situation, effect of the penalty on their future). The Federal Supreme Court only reviews the sentence imposed in cases of abuse of the cantonal authority's broad discretion.

Application to the specific case

The Federal Supreme Court rejects all of the appellant's arguments:

1. Regarding arbitrariness: The appellant's criticisms are deemed purely appellate in nature. He merely contests the established facts (e.g., his engagement with the police) without demonstrating how the cantonal court's assessment of the evidence is untenable.
2. Regarding necessity: The appellant claimed to have acted to protect his children, whom he believed were in danger of being left alone by their mother. The Federal Supreme Court confirms the cantonal analysis:
   1. The danger was neither established nor imminent. The mother had already taken steps to ensure their care.
   2. The condition of subsidiarity was clearly not met. The appellant had multiple lawful means to ensure his children's safety (contacting the mother, the police, or child protection services) instead of committing a serious offense. Abduction was by no means the only way to avert the alleged danger. Necessity, whether real or putative, is therefore dismissed.
3. Regarding the waiver of punishment (Art. 54 SCC): The appellant invoked the suspension of his personal relations with his children as a direct and sufficiently severe consequence to justify an exemption from punishment. The Federal Supreme Court considers that this restriction, decided by a judicial authority, is a foreseeable and inevitable consequence of his criminal behavior. Given the appellant's intentional and serious fault, these consequences are not disproportionate. The application of Art. 54 SCC is therefore refused. The argument of a "double penalty" (civil and criminal) is also rejected, as the principle of *ne bis in idem* does not apply to consequences of different natures (criminal and civil) arising from the same act.
4. Regarding sentencing: The Federal Supreme Court upholds the 20-month suspended prison sentence. It finds that the cantonal court correctly assessed the appellant's culpability as "overwhelming" based on relevant factors:
   1. High level of criminal intensity: The abduction had an international character and was carried out with considerable organization and concealment (lies, changing license plates, fleeing to France, a high-speed chase).
   2. Harm caused to the children: They were traumatized, separated from their mother, and subsequently expressed the wish to see their father only in a supervised setting.
   3. Selfish motive: The appellant acted out of a refusal to accept a court decision and with the goal of permanently taking custody of the children.
   4. Lack of remorse: The appellant continues to blame the mother and justify his actions, which demonstrates the need for a sentence with a deterrent effect.
   5. Territorial jurisdiction: The fact that the flight partly took place in France does not prevent the Swiss courts from taking these elements into account when determining the sentence, as the offense began in Switzerland.

The appellant's alternative requests (a monetary penalty or an electronic monitoring bracelet) are also dismissed as they are incompatible with a 20-month sentence.

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