Facts

The appellant was convicted by the Criminal Court of Lucerne in a judgment dated 4 July 2022 of multiple violations of the Narcotics Act (NarcA), the Swiss Criminal Code (SCC) and the Foreign Nationals and Integration Act (FNIA). The charges included, among other things, repeated cocaine trafficking, fraudulent misuse of a data processing system, money laundering, qualified facilitation of illegal residence and procuring employment without a permit. The court sentenced her to a custodial sentence of two years and eleven months (of which 12 months were unconditional) with a probation period of three years, a fine of 90 day-fines at CHF 50.-- each and a fine of CHF 300.--. In addition, an expulsion order for eight years was imposed and the private claimant [B.] was awarded damages of CHF 7,000.--.

The appellant filed an appeal with the Lucerne Cantonal Court, which, in a judgment dated 14 May 2024, partially upheld the appeal and found a violation of the right to a speedy trial. The custodial sentence was reduced by two months to two years and nine months, with the unconditional portion remaining at 12 months. The fine was reduced to 20 day-fines at CHF 50.-- each. In all other respects, the appeal was dismissed and the first-instance judgment was confirmed.

The appellant then filed a criminal appeal with the Federal Supreme Court, seeking the annulment of the Cantonal Court’s judgment with regard to the convictions, the sentence, the expulsion order, the forfeiture of assets, the damages and the costs order. She requested a suspended fine of no more than 150 day-fines and a fine of CHF 300.--, alternatively a suspended custodial sentence with a fine of no more than 180 day-fines. She also requested that a second exchange of written submissions be conducted.

Considerations

The Federal Supreme Court examined the appellant’s appeal for its merits and first addressed the rights of the defence. The appellant alleged that her court-appointed defence counsel had urged her to make a false confession, thereby violating her rights of the defence. The Federal Supreme Court clarified that a serious breach of the defence counsel’s duties only exists in the case of obviously erroneous procedural conduct that substantially restricts the rights of the accused person. Such conduct was not found here, as the lower court could not identify any indications of false promises or intentional deception of the appellant by her defence counsel. The choice of defence strategy, including the recommendation to confess, falls within the discretion of the defence and, in itself, does not constitute a violation of the judicial duty of care. The appellant was unable to present any concrete evidence or a coherent argument to support her allegations, so the objection was dismissed as unfounded.

The appellant also complained of a violation of the inquisitorial principle and the right to be heard. She argued that the lower court had wrongly rejected important requests for evidence, such as the examination of further witnesses or the evaluation of WhatsApp chats. The Federal Supreme Court recalled that, pursuant to Art. 6 ECHR, criminal authorities must clarify all relevant facts ex officio, but are not required to gather evidence if, in an anticipated assessment of evidence, they conclude that further investigations would not change the outcome. The appellant was unable to demonstrate any arbitrariness in the lower court’s assessment of evidence, as it provided comprehensible reasons for its decisions and classified the rejected requests for evidence as irrelevant. Moreover, the appellant had not made any specific requests for evidence in the cantonal proceedings that would have justified a different assessment.

The appellant further alleged arbitrary findings of fact and a violation of the presumption of innocence. She argued that the lower court had uncritically accepted the statements of the prosecution witnesses [B.] and [C.] as credible, while her own statements were deemed unreliable. The Federal Supreme Court explained that the assessment of evidence is a matter for the lower court and can only be challenged in the case of obvious arbitrariness. The lower court based its findings on a number of indicia, including consistent statements from several witnesses, secured photographs and WhatsApp conversations that formed a convincing chain of evidence for the cocaine trafficking. The appellant was unable to provide any concrete indications of arbitrary assessment of evidence, so this objection also failed.

With regard to sentencing, the appellant argued that the starting sentence of 21 months for drug trafficking was disproportionate, particularly since she had not made any profit and was under the…