Facts

By judgment of 19 May 2021, the Criminal Court of the Lausanne District sentenced the accused, a Tibetan national born in 1999, to a custodial sentence of 30 months for several criminal offences (assault, theft, receiving stolen goods, robbery, fraudulent use of a computer), with deduction of 245 days of pre-trial detention, as well as a fine of 300 francs. The court refrained from ordering his expulsion from Swiss territory and found that the accused had undergone 10 days of detention in unlawful conditions, ordering a deduction of 5 days from the sentence.

The Vaud Public Prosecutor's Office appealed against this judgment. By judgment of 20 December 2021, the Criminal Appeals Court of the Vaud Cantonal Tribunal partially upheld the appeal and ordered the expulsion of the accused for a period of 8 years, to a third country, excluding the People's Republic of China. The cantonal court considered that expulsion to China was impossible due to a risk of inhuman or degrading treatment within the meaning of Art. 3 ECHR, but held that removal to a third country was possible, without specifying which one, based on a response from the Federal Council to a parliamentary interpellation.

The accused filed an appeal in criminal matters to the Federal Supreme Court on 6 March 2023 (6B_627/2022), primarily seeking the annulment of the cantonal judgment and the maintenance of the first-instance judgment. He also requested the award of compensation and legal aid. The Federal Supreme Court admitted the appeal to the extent that it was admissible.

Considerations

The Federal Supreme Court first recalls the general principles applicable to expulsion in Swiss criminal law, in particular Art. 66a para. 2 SCC, which provides for a hardship clause allowing expulsion to be waived if it would expose the foreign national to a serious personal situation and if public interests do not outweigh private interests. This clause must be applied restrictively and taking into account the criteria of integration, family, financial and health situation, and length of stay, inspired by Art. 31 ASEO. The judge must also verify that there is no violation of the principle of non-refoulement, guaranteed by Art. 25 SCC, Art. 5 para. 1 AsylA, Art. 33 Geneva Convention and Art. 3 Convention against Torture.

In the present case, the cantonal court correctly identified the existence of a risk of inhuman or degrading treatment in the event of the accused's return to China, due to his Tibetan origin, and therefore excluded that country as a destination for expulsion. However, it erred in ordering expulsion to a third country without specifying which one, merely excluding China. The Federal Supreme Court recalls that expulsion to a third country must be possible, i.e. the foreign national must have a right of residence there. Expulsion cannot be ordered on the basis of mere speculation as to the destination country. Case law requires that the third country be clearly identified and that the foreign national have a sufficient legal or factual link to be admitted there.

The Federal Supreme Court emphasises that the…