Expulsion of a foreigner who grew up in Switzerland and was convicted of serious bodily harm

Facts

The case concerns a Chilean national who came to Switzerland at the age of 13 and spent part of his childhood and adolescence here. He was found guilty by the District Court of Bülach of attempted serious bodily harm and sentenced to a partially suspended prison sentence of 28 months. He was also expelled from Switzerland for five years. The High Court of the Canton of Zurich upheld the conviction and extended the expulsion to seven years.

The appellant filed a criminal complaint against the judgment, in particular against the order of expulsion.

Considerations

The Federal Court states that according to Art. 66a para. 1 lit. b of the Swiss Criminal Code, a foreigner convicted of serious bodily harm must be expelled from Switzerland for 5-15 years, regardless of the length of the sentence. This mandatory expulsion generally applies regardless of the specific severity of the offense.

However, the order of expulsion may "exceptionally" be waived if it would result in a serious personal hardship and the public interest in expulsion does not outweigh the private interest of the foreigner in remaining in Switzerland. The special situation of foreigners born or raised in Switzerland must be taken into account (Art. 66a para. 2 of the Swiss Criminal Code).

The Federal Court states that the hardship assessment must be carried out in each case based on the usual integration criteria. A longer period of residence in Switzerland, together with good integration, is generally to be regarded as a strong indication of a significant interest in remaining in Switzerland and thus of the existence of a hardship case. In the subsequent balancing of interests, the person concerned must be granted an increasingly weighty private interest in remaining in Switzerland the longer they have been present.

In the present case, the appellant came to Switzerland at the age of 13. The…