Facts

Parties to the proceedings: The appellant (accused, born 1972, Somali national, in Switzerland since 2001) is represented by an appointed defence counsel. The respondent is the Office of the Attorney General of the Canton of Bern. The lower instance is the Higher Court of the Canton of Bern, 2nd Criminal Chamber, judgment of 19 February 2019 (SK 18 342).

Proceedings before the lower instance: By judgment of 1 February 2018, the Regional Court Bern-Mittelland had partially acquitted, discontinued proceedings and ordered damages. The Higher Court confirmed the legal force of these parts and, on appeal, convicted the appellant as follows:

  • of commercial fraud in 24 cases, of which 15 cases fall in the offence period from 14 November 2014 to 16 March 2016 and 9 cases in the offence period from 13 January 2017 to 1 March 2017;
  • of multiple, partly minor, bilking of restaurant bills in 8 offence periods from 28 October 2015 to 8 February 2017;

Sentence: a custodial sentence of 17 months, partly as a supplementary sentence to judgments of the Public Prosecutor's Office of the Canton of Valais (13 November 2015) and Solothurn (10 February 2016), with credit for 162 days of pre-trial detention, as well as a contravention fine of CHF 300.--. In addition, expulsion from Switzerland for 5 years was ordered. A further proceeding (SK 19 243) is pending before the Higher Court.

Complaints before the Federal Supreme Court: The appellant lodges a layperson's appeal against the sentencing and the expulsion. He asserts that he had problems with the child and adult protection authority (KESB), escaped and stayed overnight in hotels; he received loans, which is not fraud; and the sentence is 'very high'. He further argues that, because of his combined personality disorder, he is not capable of integration, that medical support is lacking in Somalia, and that the 2016 expert report is outdated.

Legal question: Whether the sentencing complies with federal law and whether the mandatory expulsion from Switzerland (Art. 66a para. 1 lit. c SCC) should be waived on account of a serious personal hardship under Art. 66a para. 2 SCC.

Considerations

Admissibility: The layperson's appeal does not satisfy the requirements of reasoning under Art. 42 para. 2 FSCA, Art. 97 para. 1 FSCA and Art. 106 para. 2 FSCA. In view of the expulsion ordered, however, it is justified to address the submissions rather than dispose of the appeal formally by declaring it inadmissible.

Sentencing: The Federal Supreme Court confirms the sentencing. The lower instance rightly weighed as aggravating that the appellant confessed only partially, showed no insight or remorse, had no credible willingness to repay, and continued to offend. Given 24 cases of commercial fraud and multiple bilking of restaurant bills, as well as the statutory range of punishment (up to ten years for commercial fraud under Art. 146 para. 2 SCC; up to three years for bilking of restaurant bills under Art. 149 SCC), the sentence is not excessive. The lower instance also took four prior convictions into account. Because of the poor prognosis, it was entitled to impose the custodial sentence unconditionally under Art. 42 paras. 1 and 2 SCC.

Mandatory expulsion from Switzerland: The conviction for commercial fraud constitutes a listed offence within the meaning of Art. 66a para. 1 lit. c SCC, which makes expulsion from Switzerland mandatory unless a hardship case exists. Expulsion may be waived only exceptionally if the expulsion (1.) would cause a serious personal hardship and (2.) the public interest does not outweigh the private interest in remaining (Art. 66a para. 2 SCC). The hardship clause is to be applied restrictively.

Integration and public interest: The appellant is not integrated. Social assistance and the KESB remained unsuccessful, he escaped from psychiatric treatment, professional integration failed despite good language skills, he lives as a loner without family in…