Family criminal law — domestic violence, child non-return, maintenance default
Domestic violence, assault, coercion, child non-return, default on maintenance: interface of the criminal complaint (CP arts. 217-220) and civil proceedings in Geneva.
Family criminal law comes into play when the breakdown of a couple or of parental relations crosses into criminal offences — physical or psychological violence, coercion, threats, non-payment of maintenance, refusal to return a child, parental abduction. These cases are run on two fronts simultaneously: the criminal complaint and the civil proceedings (marital protection measures, divorce, civil restraining order). Either pillar without the other leaves the victim exposed; the two coordinated secure both material situation and physical safety.
In Geneva, a police-issued removal order under the cantonal Domestic Violence Act (LVD-GE) can be obtained within 24 to 72 hours, independent of any criminal complaint.
Legal framework
Swiss Criminal Code (SR 311.0)
- Art. 122 CP — grievous bodily harm
- Art. 123 CP — common assault (prosecuted ex officio when the perpetrator is a spouse, registered partner, ex-spouse, cohabitant or ex-cohabitant within one year of separation)
- Art. 126 CP — physical aggression without injury (voies de fait) — prosecuted ex officio in the family context
- Art. 180 CP — threats (prosecuted ex officio against spouses/partners/ex-partners)
- Art. 181 CP — coercion
- Art. 183-184 CP — unlawful detention and abduction (aggravated when the victim is a minor)
- Art. 189-190 CP — sexual coercion and rape (including between spouses since 1992)
- Art. 217 CP — default on maintenance
- Art. 219 CP — breach of duty of care or education
- Art. 220 CP — failure to return a child / wrongful detention of a minor
Criminal Procedure Code (SR 312.0)
- Art. 30-33 CPP — status and rights of the injured party
- Art. 116 ff. CPP — criminal plaintiff status
- Art. 55a CP — provisional suspension of proceedings in domestic-violence cases at the victim’s request
Geneva cantonal Domestic Violence Act (LVD-GE)
- Art. 8 LVD — police-issued removal orders (10 days, extendable to 30 days by the Court of Justice)
- Jurisdiction of the Attorney General and the Domestic Violence Brigade of the Geneva judicial police
Civil Code — articulation with criminal law
- Art. 28b CC — protection of personality: prohibition on approaching, frequenting certain places, contacting (civil measures parallel to the criminal track)
- Art. 172-179 CC — marital protection measures (civil track)
Domestic violence — the dual criminal-and-civil action
The classic mistake — acting on one track only
A victim who files a complaint without simultaneously seeking civil removal measures (art. 28b CC or LVD-GE) remains exposed to the perpetrator for the entire criminal investigation — 6 to 18 months in Geneva. Conversely, civil measures without a complaint have no repressive effect and produce no criminal record.
The correct strategy systematically combines:
- Criminal complaint (or report to the police when prosecution is ex officio)
- Immediate removal order (LVD-GE through the police, 24-72 h)
- Ex parte marital protection measures at the Court of First Instance (24-72 h)
- Plaintiff status in the criminal proceedings to follow the investigation and, where applicable, claim damages and moral compensation
Ex officio prosecution — the 2004 reform
Since the revision of 3 October 2003 (in force 2004), violence between spouses (arts. 123, 126, 180 CP) is prosecuted ex officio when the perpetrator is a spouse, registered partner, ex-spouse or cohabitant within one year of separation. The victim no longer bears the burden of the complaint — proceedings continue even if she wishes to discontinue them. Art. 55a CP opens a window for provisional suspension at the victim’s request, under conditions.
Acting as criminal plaintiff
The plaintiff status (art. 116 ff. CPP) opens the following rights:
- Access to the investigation file
- Attendance at hearings
- Requests for investigative measures (expert opinions, witness hearings)
- Civil claims for damages and moral compensation
- Appeal rights in case of dismissal
Without plaintiff status, the victim has no access to the file — she learns of the outcome via the criminal order or judgment, with no influence on the process.
Failure to return a child (art. 220 CP)
Art. 220 CP punishes anyone who, having custody of a minor, refuses to return the child to the parent entitled under a civil judgment, court order or judicially ratified agreement. Prosecuted on complaint (deadline: 3 months from knowledge — art. 31 CP), punishable by up to 3 years’ imprisonment.
Conditions
- An enforceable civil title (divorce judgment, marital protection order, provisional measures, ratified agreement)
- A return request made according to the terms of the title
- A refusal by the custodial parent — direct or by repeated obstruction
Articulation with civil proceedings
A complaint under art. 220 CP is rarely the first step. The operational sequence is:
- Documented written demand (letter, email, dated SMS)
- Application for enforcement (art. 343 CPC, possibly with daily penalties)
- Criminal complaint if obstruction persists — the goal is rarely conviction but behavioural deterrence
- Application to vary custody at the Child and Adult Protection Court (TPAE) or Court of First Instance if obstruction is systemic
Cross-border angle
If the child is taken abroad in violation of custody, art. 183 CP (abduction) may apply alongside art. 220 CP, and the 1980 Hague Convention on the civil aspects of international child abduction applies for return (see International child abduction). Criminal and civil tracks run in parallel — INTERPOL for location, Hague for return.
Default on maintenance (art. 217 CP)
A parent or ex-spouse who, though able to do so, fails to pay maintenance owed to a descendant, spouse or parent faces up to one year of imprisonment or a monetary penalty. Prosecuted on complaint (3-month deadline — art. 31 CP).
The central test — ability to pay
Art. 217 CP does not punish the insolvent debtor. It punishes those who could pay and do not. Establishing capacity requires:
- Examination of real income (payslips, tax returns, account movements)
- Examination of lifestyle (rent, vehicles, travel)
- Where necessary, investigative measures in the criminal proceedings (asset freezes, searches)
Strategic use
Art. 217 CP works less as a sanction than as a payment lever. The threat of conviction — with a criminal record — induces most reluctant debtors to regularise. The complaint is therefore filed alongside:
- ordinary debt-enforcement proceedings (definitive mainlevée on the civil judgment under LP art. 80)
- an application to the Geneva SCARPA (maintenance advance and recovery)
- in cross-border cases, an application to the French ARIPA
See the guide Cross-border maintenance and the procedure Recovering cross-border maintenance.
Breach of duty of care or education (art. 219 CP)
Art. 219 CP punishes any person responsible for a minor who seriously breaches the duty of care or education by endangering the child’s physical or psychological development. Prosecuted ex officio. Typically deployed in cases of serious neglect, prolonged exposure to domestic violence (the child as witness), or deprivation of medical care.
Art. 219 CP systematically calls for a report to the TPAE (Child and Adult Protection Court) in parallel, which can order a curatorship of educational assistance or removal of the right to determine the child’s residence (CC arts. 308-310).
LVD removal procedure in Geneva
The Geneva Domestic Violence Act (LVD-GE) allows the police to order, with no prior proceedings, the removal of the perpetrator from the common domicile for 10 days, extendable by 20 days by the Court of Justice (LVD art. 8).
Triggering
- Call 117 or appearance at a police station
- The Domestic Violence Brigade intervenes on site
- Risk assessment under a standardised grid (DA-GE)
- Removal decision served on the perpetrator immediately
Effects
- Prohibition on entering the domicile for the fixed duration
- Prohibition on direct or indirect contact
- Surrender of keys to the police
- Emergency accommodation possibly arranged (the Solidarité Femmes shelter accepts victims only, not perpetrators)
Extension
The Court of Justice may extend the removal by 20 days on application of the Attorney General or the victim, and during this period art. 28b CC civil measures can be obtained from the Court of First Instance for the following 3-6 months, renewable.
Critical deadlines
| Action | Deadline |
|---|---|
| Criminal complaint (offences on complaint) | 3 months from knowledge — CP art. 31 |
| Appeal against dismissal order | 10 days — CPP art. 322 |
| Opposition against criminal order | 10 days — CPP art. 354 |
| LVD-GE removal order | 24-72 h through the police |
| Ex parte marital protection measures | 24-72 h through the Court of First Instance |
| Civil measures CC art. 28b | 2-4 weeks in summary proceedings |
Costs
- First consultation: CHF 50
- Filing a simple complaint: CHF 800-1,500
- Plaintiff representation with active investigation: CHF 4,000-12,000 depending on duration
- Assistance for an LVD removal order: CHF 1,500-3,500
- Civil action under CC art. 28b: CHF 2,500-5,000
- Criminal procedural costs: borne by the State for the plaintiff in ex officio cases
- Cantonal legal aid: available subject to means tests
- Victim Assistance Act (LAVI): compensation and advance available for victims of serious offences
Common pitfalls
- Criminal complaint without parallel civil measures. Criminal proceedings take 6-18 months — the victim has no legal protection during that period unless an LVD removal order and marital protection measures are obtained in parallel.
- Naïve withdrawal of complaint. In domestic violence, withdrawing the complaint does not stop proceedings since prosecution is ex officio. The victim may request a provisional suspension (CP art. 55a) but the prosecutor is not bound to grant it.
- Misreading art. 220 CP from the custodial side. A custodial parent invoking “serious reasons” to refuse return must document the risk; otherwise that parent is exposed to prosecution.
- Underestimating art. 217 CP. A debtor who believes that mere financial difficulty excludes conviction is mistaken: case law requires real insolvency, not a prioritisation of expenses to the detriment of maintenance.
- Late complaint. The 3-month deadline (CP art. 31) runs from knowledge of the perpetrator and the offence. A complaint filed beyond is inadmissible for offences on complaint.
Documents to prepare
- Identity card or passport
- Marriage or registered-partnership certificate
- Birth certificates of children
- Judgments / marital protection orders / ratified agreement if civil case pending
- All factual evidence: medical certificates, photographs, message screenshots, dated SMS / WhatsApp / email exchanges
- List of possible witnesses with contact details
- For art. 217 CP: enforceable title (judgment or order), summary of missed payments, unanswered demand letters
- For art. 220 CP: enforceable title, log of refused return requests, possible witnesses
Articulation with other family proceedings
- Marital protection measures (MPUC) — simultaneous civil track for domestic violence
- Divorce and cross-border divorce — often triggered by a complaint
- International child abduction — articulation of CP arts. 183/220 with the 1980 Hague Convention
- Binational custody — variation of custody after repeated art. 220 CP breaches
- Cross-border maintenance — articulation with art. 217 CP
Maître Andrea von Flüe has handled family criminal law matters in Geneva since 2012, representing both plaintiffs and defendants, with systematic coordination of the civil track (marital protection, divorce, protection orders). First consultation CHF 50.