Facts
Parties: The appellant [A.A.] (represented by lawyer Thomas Fingerhuth) against the Public Prosecutor's Office of the Canton of Schaffhausen as respondent. The lower instance is the Higher Court of the Canton of Schaffhausen (judgment of 27 April 2021, proceedings 50/2020/5 and 50/2020/11). The Cantonal Court of Schaffhausen had ruled at first instance on 21 November 2019.
Indictment A.a (importation of 8/9 April 2016): The appellant is charged with having participated in the transport of 5'514.7 grams of a cocaine mixture (purity 63-78%, i.e. 3'772.8 grams of pure cocaine) from Rotterdam to Switzerland. He allegedly maintained intensive telephone contact with [B.] and engaged the driver [C.] , who resides in Rotterdam. He allegedly handed [C.] the money for the cocaine, travelled with [D.] to Rotterdam on 1 April 2016, and prepared the concealment of the drugs in a Seat Ibiza with modified front seats. On the night of the offence he allegedly accompanied [C.] up to the border crossing (border crossing at 00.43 hours) and was to take over the vehicle in Switzerland. On 9 April 2016 at approx. 4.30 hours, [C.] entered Switzerland at Dörflingen and was stopped by the border guard at 4.35 hours; the cocaine was discovered in the front seats. The appellant then attempted eleven times to reach [C.] .
Indictment A.b (importation of 24 June 2016): The appellant allegedly entered Switzerland at 20.08 hours from Austria in his Honda Stream and carried three packages of 381 grams of cocaine mixture (31%, corresponding to 118 grams of pure cocaine) concealed in the rear seat backrest, with the intention of selling them in Switzerland for profit.
Stop and arrest: The stop on 24 June 2016 in Diepoldsau was triggered by an alert from the Automated Vehicle Search and Traffic Monitoring System (IFO) with the remark 'suspected NarcA smuggling'. The lower instance stated that the IFO entry was based on a personal check of 22 August 2015, during which the appellant had been found as driver with a syringe containing cocaine, sodium carbonate and a scale. The arrest report gives as the reason an 'internal suspicion report (BM) of the GWK'. After evaluating the mobile phone of [C.] , the Schaffhausen Cantonal Police had identified the phone number yyy, which was attributed to the appellant, and had instructed the border guard to check him closely at his next entry or exit.
Cantonal judgments: The appellant was found guilty of multiple qualified contravention of the NarcA and sentenced to a custodial sentence of 5 1/2 years (with credit for pre-trial detention). A conditional fine imposed by the Public Prosecutor's Office on 18 April 2016 was not revoked, but the probation period was extended by 1 1/2 years.
Requests before the Federal Supreme Court: Acquittal; no revocation and no extension of the probation period of the conditional fine; costs to be borne by the public purse without repayment obligation; compensation for the deprivation of liberty. Alternatively, annulment of the judgment and remittal. Also an application for legal aid and appointment of counsel.
Grounds of appeal: (1) The stop of 24 June 2016 was insufficiently documented in the files, so its lawfulness cannot be reviewed; the usability of the findings and of the mobile phone evaluation is doubtful. (2) The sentencing is insufficiently reasoned, in particular the weighting of the individual contributions, the subjective culpability and the consideration of his personality structure (helpfulness and naivety).
Considerations
1. Lawfulness of the stop and duty to keep records (consid. 1) The Federal Supreme Court holds that the right to be heard (Art. 29 para. 2 Cst., Art. 3 para. 2 lit. c and Art. 107 para. 1 lit. a CrimPC, Art. 6 no. 3 ECHR) includes a right of access to the files, which presupposes the completeness of the files. The authorities are obliged to record procedurally relevant events in writing and to document the evidence in such a way that the accused can examine its usability. This documentation obligation already applies in the police investigation procedure. The lower court's findings of fact may only be reviewed for arbitrariness (Art. 9 Cst.) or violation of law (Art. 95 FSCA); the complaint must be substantiated (Art. 106 para. 2 FSCA).
The Federal Supreme Court examines the statutory basis for the border control: pursuant to Art. 100 para. 1 lit. a, d and e ZG, the FCBA may check persons and goods and conduct searches and surveillance in the border zone. Border guard officials may stop persons (Art. 101 para. 1 ZG, Art. 61 lit. a CustO-FCBA), search vehicles (Art. 222 CustO) and take persons away for inspection, as well as provisionally arrest them in case of imminent danger (Art. 105 ZG, Art. 19 ACLA). For these measures a sufficient suspicion of an offence is sufficient. The IFO is expressly provided for under Art. 108 para. 1 lit. a ZG and the relevant ordinance. Art. 112 ZG regulates the disclosure of data to domestic criminal prosecution authorities, including by online retrieval procedure, and Art. 114 ZG regulates administrative assistance, under which oral information is permissible but must be recorded in writing.
2. Assessment of causation and documentation The Federal Supreme Court rejects arbitrariness in the lower court's finding that the IFO entry alone was the cause of the stop and was based on a sufficient initial suspicion. The files show a comprehensible sequence: check on 22 August 2015, personal check card and IFO registration. That the registration is not expressly mentioned in the personal check card does not establish an obviously erroneous causal connection. The arrest report mentions the 'internal suspicion report of the GWK', which points to a source within the border guard corps; the mere assumption that the Cantonal Police provided guidance is not sufficient to show arbitrariness.
3. Investigations regarding the telephone number and the border guard report: The lower court comprehensibly explained how the police attributed the phone number yyy to the appellant: the evaluation of the mobile phone of [C.] (analysis on 11 April 2016, identification of the subscriber on 12 April 2016, interview of 26 April 2016) led to this finding. The designation 'El blanco [B.A.] ' was plausibly interpreted. The appellant offers nothing of substance against this, so his complaint is not to be heard. The checks accompanied by Dominicans (2015 and 2016, most recently on 1 April 2016) are on file; that the written report of the border guard is missing does not matter, since such reports may be made orally, provided they are recorded in writing. The report is sufficiently documented with the police report and compatible with Art. 112 ZG.
4. Conclusion on the stop The lower court's considerations regarding the stop and arrest of 24 June 2016 are concise, documented on file and compatible with the customs law and criminal procedure requirements. The appellant does not explain which impermissible measures the police might have used. The complaint of breach of the duty to keep records and document scrupulously fails, and the conviction is to be upheld.
5. Sentencing (consid. 2) Pursuant to Art. 47 paras. 1 and 2 SCC, culpability is assessed according to the severity of the infringement or endangerment of the legal interest, the reprehensibility of the conduct, the motives and aims of the offender and his ability to avoid the offence. The trial judge must comprehensibly set out the circumstances relevant to sentencing (Art. 50 SCC). The weighting lies within the discretion of the trial…