Facts
Parties and Instances: The appellant (represented by a lawyer) challenges the judgment of the Higher Court of the Canton of Bern, 2nd Criminal Chamber, of 26 March 2019 (SK 18 181). The respondent is the Office of the Attorney General of the Canton of Bern. The Federal Supreme Court, Criminal Law Division, decides in judgment 6B_1096/2019 of 17 April 2020.
Charges: The appellant is accused of having forged a French medical diploma, a certificate of conformity and further documents, and of having submitted them to the Federal Office of Public Health (BAG) in order to obtain recognition of her diploma. She is further alleged to have forged employment references and to have applied several times to various employers with the forged documents.
First Instance: The Regional Court Emmental-Oberaargau found the appellant guilty on 20 September 2017 of multiple forgery of identity documents (offence period 2011 to 2014) and sentenced her to a suspended custodial sentence of 13 months.
Appeal Proceedings: The Office of the Attorney General lodged an appeal. The Higher Court found that the first-instance conviction had become final and sentenced the appellant to an unsuspended custodial sentence of 22 months.
Requests before the Federal Supreme Court: The appellant requested that the judgment be set aside and the case be remitted for the ordering of a forensic-psychiatric assessment and a new main hearing. In the alternative, she requested a suspended custodial sentence of 15 months.
Considerations
1. Waiver of assessment (criminal responsibility) The appellant complained of a violation of the right to be heard (Art. 139 and Art. 182 CrimPC), of Art. 20 SCC and of an abuse of discretion, arguing that the lower court waived an assessment despite unusual behaviour, psychological impairments (post-traumatic stress disorder, dissociative seizures, suicide attempt) and inconsistencies in the medical history. The lower court had justified this by stating that the reactions to the criminal proceedings did not go beyond a temporary state of exception and that the conduct was goal-oriented, systematic and adaptable.
2. Standards for the duty to order an assessment An expert report must be ordered if there are serious doubts about criminal responsibility (Art. 19 and Art. 20 SCC). The person concerned must fall to a great extent within the abnormal range; their mental state must, in nature and degree, deviate strongly from the average (BGE 133 IV 145 E. 3.3; BGE 132 IV 29 E. 5.1). A severe impairment does not exist where the conduct before, during and after the offence shows a connection with reality, adaptability and the ability to wait for opportunities to commit the offence or to bring them about.
3. Inadmissible novel evidence The discharge report of the [M.] clinic of 26 August 2019 and the opinion of Dr. med. [B.] of 4 September 2019 are genuine novas and, under Art. 99 para. 1 FSCA, are not to be considered before the Federal Supreme Court. An extract from the Deutsches Ärzteblatt (2013) is a non-genuine nova, since it could already have been submitted in the cantonal proceedings and the appeal did not explain its relevance.
4. Assessment of criminal responsibility The Federal Supreme Court held that the lower court's considerations regarding Dr. med. [C.] (assessment of fitness to stand trial only) and regarding placement prospects with the AOO (AOO) were not fully convincing. Decisive, however, was that the appellant had systematically maintained her unlawful activity over years, had shown adaptability, and had secured professional recognition and income. Lies without any discernible purpose did not, on their own, raise doubts about criminal responsibility. The rejection of the request for an assessment therefore did not violate federal law.
5. Ne bis in idem and presumption of innocence The Federal Supreme Court rejected a violation of the principle of ne bis in idem (Art. 11 para. 1 CrimPC), since the…