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Remembering and forgetting.

No statute of limitations on serious crimes.

Interview: Christoph Dieffenbacher

Time is a key factor when investigating and sentencing serious crimes. An interview with criminal law expert Professor Christopher Geth about statutes of limitations and on forgetting in the justice system.

Christopher Geth
Professor Christopher Geth. (Illustration: Studio Nippoldt)

UNI NOVA: Professor Geth, when someone rides their bike in the park, they’re liable to be fined, but that fine quickly lapses and is promptly forgotten. The statute of limitations on a murder, by contrast, is 30 years. Does the law have different ways of telling time?

CHRISTOPHER GETH: It’s true that time is a key factor in criminal trials. The statutes of limitation on criminal prosecution depend largely on the severity of the crime. That means the limitation period is linked to the crime and can range from three years for misdemeanors to no time limits at all for the most serious crimes, such as genocide or sexual offenses committed against children under 12. The latter was introduced following a referendum in 2008, because, among other things, children who have been victimized by these types of crimes require special protection. Time is of the essence for the state, because a crime can only be prosecuted during the defined statutory limitation period.

UNI NOVA: What are the benefits of limitation periods?

GETH: They are a way of expressing the fact that punishment as a way of compensating for culpability and unlawful behavior loses its meaning with the passage of time. A punishment imposed too late can seem unreasonable. The assumption is that the disturbance to the peace caused by the crime in question dissipates as time goes on. If someone insulted you three years ago, you probably don’t care about it anymore today. The second reason is that it prevents miscarriages of justice. As time passes, details can be forgotten and less evidence is available. That applies to both incriminating evidence brought by the state as well as exculpatory evidence presented by the defendant.

UNI NOVA: But forgetting is not forgiving...

GETH: That’s right, they’re not the same. Forgetting is a psychological process, while forgiving – in the sense of forgiveness – is normative. Criminal justice employs both these categories, but when it comes to statutes of limitation defined on the grounds of legal certainty, we’re no longer dealing with forgetting or forgiving as such, but with strict deadlines. Forgetting and forgiving may provide the ideological foundation for the legal norms governing statutes of limitations, but they aren’t needed to close the proceedings on a specific case when the limitation period has elapsed. Of course, that means those affected by a crime may suffer when the limitation period is over, and enough time has passed for the general public to view it as a closed case.

UNI NOVA: Unsolved felonies can cause a lot of turmoil. In Switzerland, politicians are campaigning to lift the statute of limitations for murder altogether. What do you think of that?

GETH: There are always dramatic murder cases that capture the public imagination even decades on. Take, for example, the unsolved murder of the two young women in the St. Galler Rheintal back in 1982, the case known as the “crystal cave murders”. The limitation period for that case has elapsed, so it wouldn’t be possible to convict, even if new evidence were to come to light or the murderer or murderers themselves were to confess. But I’m not convinced that’s for the best. It’s not plausible to say that the public need for punishment diminishes significantly over time in the case of serious capital crimes such as murder. The only reasonable argument for the statute of limitations would be the increased difficulty of providing evidence, but modern forensics methods have helped to mitigate that issue. Although there are limits to DNA evidence, I find the argument for abolishing the statute of limitations for murder to be very persuasive. The most important thing is to ensure that the courts can guarantee a fair trial for everyone involved, even 30 years later.

UNI NOVA: How does society help to shape the law?

GETH: Criminal law is an emotional topic for many people, and in the long term, it molds itself to fit the dominant societal mores. Still, accusations and contempt for others can crop up in society in ways that are totally unrelated to the legal system. These are based purely on moral judgments, that have no place in the law.

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