Facts

Parties and instances: The appellant (A.) was convicted by the District Court of Aarau on 8 March 2018 of rape (Art. 191 SCC) and violation of the Narcotics Act (Art. 19a NarcA). The judgment imposed a suspended fine of 270 daily rates at CHF 30.-, a fine of CHF 2,000.-, as well as a national expulsion for five years, with the tendering of the national expulsion in the Schengen Information System (SIS) being ordered.

The Higher Court of the Canton of Aargau upheld on 11 September 2019, upon appeal by A., the conviction for rape and reduced the fine to CHF 1,700.-. The national expulsion and the tendering in the SIS were also confirmed.

Factual circumstances of the offence: On 9 September 2017, A. entered the bedroom of C., where B. (C.’s ex-girlfriend) was sleeping. A. exposed himself and attempted to penetrate B.’s vagina with his penis. B. awoke, was frightened and demanded that A. leave the bedroom. A. complied with this request.

Legal remedies: A. filed an appeal in criminal matters with the Federal Supreme Court and requested the annulment of the judgment and an acquittal from the charge of rape. In the alternative, he requested a conviction for sexual harassment (Art. 198 SCC) and the annulment of the national expulsion and the tendering in the SIS.

Considerations

1. Requirements for tendering in the SIS The Federal Supreme Court examined whether the tendering of the national expulsion in the SIS pursuant to Art. 21 and 24 SIS-II Regulation and Art. 24(2)(a) SIS-II Regulation was lawful. The provision does not require a conviction to a custodial sentence of at least one year or a conviction for an offence punishable by a minimum custodial sentence of one year. The decisive factor is whether the offence is punishable by a maximum term of imprisonment of one year or more. In addition, there must be a danger to public security or order, although no excessive requirements are to be imposed in this regard. The CJEU has clarified that lower standards apply to the risk assessment for third-country nationals without freedom of movement rights than for Union citizens.

2. Assessment of rape (Art. 191 SCC) Rape is punishable by a maximum term of imprisonment of five years and thus falls within the scope of application of Art. 24(2)(a) SIS-II Regulation. The lower court found that there was a danger to public order, as A. had massively violated B.’s sexual integrity through the offence and thus created a public interest in his removal. The Federal Supreme Court held that the severity of the offence and the individual circumstances of the case (e.g. prior convictions, delinquent behaviour) justified such a danger. The fact that the sentence was suspended does not preclude tendering in the SIS, as the legal prognosis and the severity of the sentence are not the sole decisive factors.

3. Proportionality and individual assessment Tendering in the SIS must be proportionate and based on an individual assessment. The Federal Supreme Court emphasised that the lower court had inadequately reasoned the tendering, but…