Swiss Federal Supreme Court, 09.22.2026, 6B_153/2026
Facts
On August 21, 2024, police officers patrolling a public park in search of a third party approached A.________, who was sleeping on a public bench in broad daylight (recital 2.6).
After verifying that he was not in distress, the officers checked his identity and performed a search in the RIPOL system, which revealed an active judicial expulsion order. They then searched his backpack and discovered a replica weapon that imitated a real firearm (recitals 2.6 and 2.7).
On May 22, 2025, the Geneva Police Court sentenced A.________ to 120 days of imprisonment for breach of a ban (Art. 291 para. 1 SCC) and a violation of the Weapons Act (Art. 33 para. 1 let. a LArm) (fact A).
Ruling on the defendant's appeal on January 22, 2026, the Criminal Appeals and Revision Chamber of the Geneva Court of Justice fully acquitted A.________, holding that the initial check lacked an objective basis, constituted a presumption of racial profiling within the meaning of Art. 8and14 ECHR and that the subsequent investigative acts constituted an unlawful "fishing expedition," rendering the evidence inadmissible (fact B, recital 2.6).
The Geneva Public Prosecutor's Office has filed a criminal appeal with the Federal Supreme Court, seeking the conviction of A.________ (fact C).
Law
The prohibition of discrimination (Art. 8 para. 2 Cst., Art. 14 ECHR in conjunction with Art. 8 ECHR) forbids any differential treatment based on race, origin, or color without an objective and reasonable justification; once differential treatment is made plausible, the burden of proving the existence of a justification lies with the authorities (recitals 2.1 and 2.2.2).
Police identity checks, whether for general prevention (Art. 47 of the Geneva Police Act [LPol]) or criminal prosecution (Art. 215 CrimPC), constitute interference with personal liberty and private life that cannot be carried out out of curiosity or arbitrarily, but must be based on objective grounds, specific circumstances, or concrete suspicious elements (recital 2.3.1).
Police questioning and apprehension within the meaning of Art. 215 para. 1 CrimPC require that there be an objectively possible link, even in the form of a vague suspicion, between the person questioned and a criminal offense (recital 2.3.1).
A preventive or security search of a person without a warrant from the public prosecutor is only permitted underArt. 241 para. 4 CrimPC with respect to a person who has been previously and validly apprehended (Art. 215 CrimPC) or arrested (art. 217 CrimPC) (recital 2.3.2).
Implementing coercive measures in the absence of any initial suspicion, with the aim of fortuitously obtaining evidence of unspecified offenses, constitutes an unlawful "fishing expedition" that invalidates the intervention (recital 2.8).
The application of cantonal police law is reviewed by the Federal Supreme Court only under the limited scope of arbitrariness (Art. 9 of the Constitution.) and subject to qualified reasoning (art. 106 para. 2 LTF) (recital 2.5).
Application to the specific case
The standing of the Geneva Public Prosecutor's Office, represented by a prosecutor in accordance with cantonal judicial organization law, is admitted (recital 1).
Regarding the merits of the preventive identity check, the cantonal court did not act arbitrarily in finding that the mere fact that the respondent was sleeping on a public bench in broad daylight, in a non-criminogenic area and without disturbing public order, provided no objective circumstances justifying an identity check within the meaning of Art. 47 LPol once his physical integrity had been verified (recitals 2.6 and 2.7).
The Public Prosecutor's argument that the result (the subsequent discovery of offenses) retrospectively justifies the intervention ignores the requirement for prior objective grounds and fails to demonstrate any arbitrariness in the cantonal court's finding of a presumption of discriminatory profiling (recital 2.7).
Regarding the RIPOL check and the search of the backpack, the Federal Supreme Court confirms that no suspicion, however vague, of the commission of an offense existed at the time the police approached (recital 2.8).
As the conditions of Art. 215 CrimPC were not met, the respondent did not have the status of a person lawfully apprehended; consequently, the police could not conduct a secondary safety search based on Art. 241 para. 4 CrimPC (recital 2.8).
The cantonal court was therefore correct to classify these acts as unlawful exploratory investigations ("fishing expedition") and to refuse to use the findings resulting from them (recital 2.8).
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible (recitals 2.7 and 2.8).
The acquittal of A.________ for the offenses of breach of ban and violation of the Weapons Act is confirmed (recital 2.8).
No court costs are charged, as the appellant Public Prosecutor's Office was acting in the exercise of its official duties (Art. 66 para. 4 LTF).