Facts

Parties and Procedural History:

The appellant, a father of four children and a stepdaughter, was convicted by the Regional Court of Berner Jura-Seeland on 2 June 2022 of multiple endangerment of life, violation of care and custody obligations, multiple qualified simple assault, multiple coercion, multiple threats, multiple insults, and attempted deprivation of minors, and sentenced to a partially suspended custodial sentence of three years and a fine of 180 day-fines. He was also banned from the country for seven years. The appellant filed an appeal, while the Office of the Attorney General of the Canton of Bern lodged a cross-appeal regarding sentencing.

The Higher Court of the Canton of Bern partially upheld the first-instance judgment on 9 November 2023. It acquitted the appellant on one count of endangerment of life and discontinued proceedings in one count of qualified simple assault. In all other respects, it confirmed the convictions for endangerment of life, multiple qualified simple assault, multiple coercion, violation of care and custody obligations, multiple threats, and attempted deprivation of minors. It sentenced the appellant to an overall custodial sentence of five years and upheld the seven-year ban from the country. It also ruled on a civil claim and other ancillary consequences.

Facts of the Case:

Between 2014 and 2017/2019, the appellant is alleged to have repeatedly humiliated, degraded, and physically punished his four children and his stepdaughter. Specifically, he was accused of standing on the neck of his stepdaughter [B.A.] with his foot, thereby briefly cutting off her air supply. He also allegedly threatened to kill her if she contacted her best friend. Furthermore, he threatened his children [B.A.] and [D.A.] with being thrown out of the house and placed in a children’s home if they contacted [C.A.] or told the authorities the truth. The appellant is also alleged to have systematically distanced his children from their mother and created a climate of fear and isolation in the household. He instructed them to lie to the police and authorities and used them for his own purposes, including having them sell pastries labelled as ‘homemade’ and keeping the proceeds for himself.

The appellant denies the allegations and, in his appeal to the Federal Supreme Court, requests that the Higher Court’s judgment be partially quashed. In particular, he seeks acquittal on the charges of endangerment of life, multiple coercion, and violation of care and custody obligations, as well as the lifting of the ban from the country. The respondents, the Office of the Attorney General of the Canton of Bern and [B.A.] , request that the appeal be dismissed with costs.

Considerations

1. Admissibility of the Appeal:

The Federal Supreme Court examines criminal appeals for legal violations under Art. 95 and 96 FSCA. The appeal must be sufficiently reasoned and address the grounds of the contested decision. The appellant submitted his pleadings in French, which is permissible since the Federal Supreme Court conducts proceedings in one of the official languages. However, the procedural language remains German. The Federal Supreme Court generally reviews only the grounds raised, unless legal defects are manifest. It is not an appellate instance and may not freely reassess the facts.

2. Violation of Care and Custody Obligations (Art. 219 SCC):

The appellant argues that the objective elements of Art. 219 SCC were not met, as no psychological or physical consequences were established for the children. The Federal Supreme Court notes that Art. 219 SCC is a concrete endangerment offence that does not require actual impairment of the minor’s development. The lower court found that the appellant had subjected his children and stepdaughter to physical and psychological violence over years, created a climate of fear and isolation, and systematically distanced the children from their mother. These findings are neither arbitrary nor unlawful. The appellant’s ground of appeal is therefore unfounded.

3. Endangerment of Life (Art. 129 SCC):

The appellant denies the allegation that he stood on [B.A.] ’s neck with his foot, thereby cutting off her air supply. The Federal Supreme Court confirms the lower court’s finding that the appellant stood on the neck of his daughter, who was lying on the ground, with his body weight, temporarily cutting off her air supply. The lower court deemed [B.A.] ’s statements credible due to their detailed, consistent, and original nature. The appellant did not demonstrate any arbitrariness in the factual findings. The ground of appeal is therefore unfounded.

4. Multiple Coercion (Art. 181 SCC):

The appellant argues…