Facts
The District Court of Zurich convicted on 19 September 2022 the appellant B.A. (father) and the appellant A.A. (stepmother) of grievous bodily harm under Art. 122 para. 3 SCC to custodial sentences of five years each. In addition, B.A. was ordered to undergo outpatient treatment under Art. 63 SCC and was issued a deportation order for ten years. A.A. was sentenced to a custodial sentence of four years.
The Zurich Public Prosecutor’s Office accused the appellants of having physically and psychologically abused and excluded from the family their biological daughter C., born in 2004, over a period of eight years (2011 to 2019). The abuse included regular slaps, systematic isolation in her room, cold and hot showers, pouring corrosive liquids over her, restraints, strangulation attempts, and threats with a knife. As a result of these acts, C. suffered severe psychological damage, including complex post-traumatic stress disorder.
Both B.A. and A.A. appealed the judgment of the District Court of Zurich to the Zurich Higher Court. With a judgment of 18 April 2024, the Higher Court upheld the five-year custodial sentence and the deportation order for B.A., while A.A. was sentenced to a four-year custodial sentence. The appellants challenged in their appeal, in particular, the sentencing and sought a reduction of the sentences or a reassessment.
The Federal Supreme Court heard the appeals in proceedings 6B_687/2024 (A.A.) and 6B_698/2024 (B.A.) on 12 September 2025. Both appellants sought the annulment of the lower court judgments and a reassessment of the sentencing. The Senior Public Prosecutor’s Office of the Canton of Zurich requested the dismissal of the appeals.
Considerations
The Federal Supreme Court had to determine the extent to which the appellate court is bound by the established facts of the first instance when an appeal is limited to sentencing. Under Art. 399 para. 4 lit. b CrimPC, an appeal may be limited to sentencing, which results in the unchallenged conviction becoming final. The underlying factual circumstances are thereby conclusively deemed criminal, and the appellate court is bound by their outer limits.
The appellants argued that the Higher Court had wrongly restricted its cognition by feeling bound to the facts established at first instance and not considering new evidence requests regarding the sentencing facts. They contended that the lower court had not sufficiently assessed their submissions regarding alleged impulsive reactions, a shortened period of offences, and the lesser severity of the assaults. They also alleged a violation of the right to be heard.
The Federal Supreme Court clarified the existing case law and held that while the appellate court generally has full cognition (Art. 398 paras. 2 and 3 CrimPC), it is also restricted in factual terms when the appeal is limited to sentencing. The unchallenged conviction fixes a specific factual situation that is conclusively deemed criminal. The appellate court may therefore only consider circumstances that fall within this fixed factual situation and do not call into question its essential elements.…