Facts
The appellant received social assistance from the municipality of [U.] in the years 2016 and 2017. She was employed as a kitchen assistant at [B. GmbH] from November 2013 to November 2016, with her wages being paid directly to the social services department until June 2016. For the months from July to November 2016 and from February to September 2017, she earned additional income at [C. GmbH] , which she did not declare to the social services department. As a result, she received more social assistance than she would have been entitled to in the periods from August to December 2016 and from March to November 2017, taking her income into account.
The District Court of [U.] acquitted the appellant on 17 April 2017. The public prosecutor’s office filed an appeal. The Higher Court of the Canton of Aargau convicted the appellant on 27 August 2020 of unlawfully receiving social assistance benefits in relation to the income from [C. GmbH] , imposing a suspended fine of 50 daily rates of CHF 30.-- each (probation period of two years), a fine of CHF 300.--, and a ban on entering the country for five years.
The appellant argued before the Federal Supreme Court that the principle of prosecution had been violated, that the facts had not been fully established, that intent was lacking, and that a minor case under Art. 148a para. 2 SCC had been wrongly denied.
Considerations
The Federal Supreme Court first examined the admissibility of the appeal. This was given since the appellant was entitled to appeal and the appeal period had been observed. The argument that the principle of prosecution (Art. 9 para. 1 CrimPC) had been violated was dismissed because the lower court had not exceeded the charged facts but had merely restricted them in amount. The appellant had not sufficiently demonstrated that her defence rights had been impaired.
The argument that the facts had not been fully established was also rejected. The lower court was not required to take further evidence since the facts were sufficiently clear. The appellant could not effectively fulfil her obligation to report under § 2 LangA by declaring her income to the AOO, as she knew that the social services department was unaware of her earnings. Her intent was deemed to be conditional, as she accepted the payment of excessive social assistance benefits.
Regarding the question of a minor case under Art. 148a para. 2 SCC, the Federal Supreme Court held that, in addition to the amount of the offence (here CHF 3,303.73), other circumstances must be taken into account. The appellant acted with low criminal energy, as she did not actively conceal her income but merely failed to report it. There was also some shared responsibility on the part of the social services department, as it should have…