Facts
The complainant, a Kosovar national, was convicted by the Criminal Court of the Canton of Lucerne on 26 August 2020 of attempted eventual intent homicide and criminal damage and sentenced to a custodial sentence of six years. In addition, a ten-year expulsion order was issued, with an entry in the Schengen Information System (SIS). The Court of Appeal of the Canton of Lucerne upheld this conviction on 26 October 2021 and reduced the custodial sentence to five years and two months. The Federal Supreme Court quashed this judgment in proceedings 7B_179/2022 on 24 October 2023 and referred the matter for reassessment. The Court of Appeal of the Canton of Lucerne again convicted the complainant on 19 September 2024 of attempted intentional homicide and sentenced him to a custodial sentence of five years, while upholding the expulsion order and the SIS entry.
The complainant, in his appeal to the Federal Supreme Court, challenged the admissibility of illegally obtained private video recordings from the exterior of the bar where the offence occurred. He also contested the finding of eventual intent homicide, the sentencing, the expulsion order and the SIS entry. He sought his acquittal or a more lenient conviction on grounds of self-defence or excusable excess of self-defence, as well as the revocation of the expulsion order and the SIS entry.
The Public Prosecutor’s Office of the Canton of Lucerne and the respondent [B.] requested that the appeal be dismissed. The High Court of the Canton of Lucerne concurred with this view.
Considerations
1. Admissibility of private video recordings
The Federal Supreme Court confirmed the admissibility of the video recordings from the exterior of the bar, even though they were obtained by a private bar operator without sufficient indication of video surveillance. According to established case law, evidence obtained unlawfully by private individuals is only admissible if it could lawfully have been obtained by the prosecution authorities and its use is indispensable for clarifying a serious criminal offence (Art. 141 para. 2 CrimPC). The lower court found that the hypothetical lawful acquisition of the video recordings by the authorities would have been possible, as they are permitted under Art. 282 para. 1 CrimPC to make covert image recordings in publicly accessible places. The video recordings were also indispensable for clarifying the serious criminal offence (attempted eventual intent homicide).
2. Eventual intent homicide and self-defence
The complainant disputed the finding of eventual intent homicide and relied on self-defence or excusable excess of self-defence. The Federal Supreme Court rejected these arguments. The lower court had established the facts without arbitrariness: the complainant had deliberately and forcefully stabbed the victim in the lower abdomen with a knife, causing a life-threatening injury. There was no situation of self-defence, as the respondent had not attacked the complainant. Furthermore, the complainant’s conduct demonstrated a low threshold for the use of violence and a disregard for life. A severe emotional disturbance within the meaning of Art. 113 SCC was also ruled out, as the complainant’s anger was not sufficient to constitute a significant affect.
3. Sentencing
The complainant argued that the sentence was too severe and that the right to a speedy trial had been violated. The Federal Supreme Court noted that the lower court had not exceeded the sentencing range and had taken into account the duration of the proceedings of three and a half years until the first-instance judgment and the duration of the appeal proceedings of four years as a violation of the right to a speedy trial,…