Federal Supreme Court, 07.13.2026, 6B_202/2026
Facts
On December 27, 2020, at a group home, A.________ (the appellant) was accused of attempting to kill B.________ (the respondent) by trying to slash or stab him in the throat with a bread knife. (A.)
The Court of First Instance (Amtsgericht) convicted the appellant of attempted murder, sentencing him to 6 and a half years of imprisonment, and ordered his internment and a 13-year expulsion from the country. (B.)
Upon appeal by the appellant and the public prosecutor, the Cantonal Court (Obergericht) upheld the conviction for attempted intentional murder, increased the sentence to 7 years of imprisonment, confirmed the internment, and extended the expulsion to 15 years. (C.)
The appellant has filed a criminal appeal with the Federal Supreme Court. He requests his acquittal, or alternatively, that the case be remanded to the lower court, raising multiple procedural grievances, including violations of the right to a fair trial, the principle of ne bis in idem, and the inadmissibility of certain evidence. (D.)
Legal Analysis
The Federal Supreme Court examined several formal and substantive grievances raised by the appellant.
- General procedural guarantees: The Federal Supreme Court reiterated the requirements regarding case file management (Art. 100 para. 2 CrimPC), the accused's capacity to follow the proceedings (Verhandlungsfähigkeit, Art. 114 para. 1 CrimPC) and the right to a fair trial (Art. 6 para. 1 ECHR), which includes the right to an adversarial process and equality of arms. (consid. 2.2, 3.3, 4.3)
- Ne bis in idem principle: Guaranteed byArt. 11 para. 1 CrimPC, this principle prohibits a person from being prosecuted or tried a second time for the same facts. For it to apply, there must be identity of facts (Tatidentität) and the first decision must have a criminal character. Case law distinguishes between criminal sanctions and disciplinary measures; the latter may be imposed alongside a criminal sanction if they pursue different goals (e.g., maintaining order in an institution). A disciplinary measure is generally not considered a "criminal charge" within the meaning of Art. 6 ECHR. (consid. 5.3.1 - 5.3.4)
- Mandatory defense and right to participate: In cases of mandatory defense (Art. 130 lit. b CrimPC), the authority in charge of the proceedings must ensure that a defense attorney is appointed without delay (Art. 131 para. 1 CrimPC). Under the former law applicable in this case, if evidence is collected before the appointment of a defense attorney, it is only admissible if the accused waives the right to have it repeated (Art. 131 para. 3 CrimPC). (consid. 6.3.1)
Furthermore,Art. 147 para. 1 CrimPC grants parties the right to be present during the administration of evidence and to ask questions. Evidence obtained in violation of this right may not be used against the party who was not present (Art. 147 para. 4 CrimPC). This right may only be restricted in cases provided for by law (Art. 108 CrimPC), particularly in the event of a risk of collusion. Such a restriction must be the subject of a formal, reasoned decision. Case law has clarified that a subsequent participation of the accused in a new hearing does not "cure" the defect of the first hearing and does not make it admissible. (consid. 6.4.1 - 6.4.4)
Application to the specific case
The Federal Supreme Court analyzes and rules on the appellant's various grievances.
- Formal grievances rejected:
- Case file management: The Federal Supreme Court finds that, although the management of the file by the cantonal authorities may have been "suboptimal," the appellant failed to demonstrate how this concretely hindered his rights of defense. The files were structured and paginated, allowing for an effective defense. (consid. 2.3)
- Ability to follow proceedings: Based on medical expertise and its own observations, the lower court correctly determined that the appellant was fit to participate in the hearing. His initially disruptive behavior ceased after a warning, and he was able to respond appropriately to questions. (consid. 3.4)
- Production of a "flip book" (Daumenkino): The document produced by the public prosecutor during their closing argument was merely a compilation of still images extracted from the video already included in the case file. It did not constitute new evidence, and its production therefore did not violate the right to a fair trial. (consid. 4.3)
- Principle of ne bis in idem: The Federal Supreme Court also rejects this claim. The disciplinary sanction of 10 days of detention imposed on the appellant immediately after the incident was intended to maintain order and security within the penitentiary, a purpose distinct from the punishment of the criminal offense of attempted murder. As this sanction does not have a criminal character within the meaning of the ECHR, its accumulation with criminal prosecution is permissible. Likewise, the use of these facts in subsequent proceedings aimed at converting a therapeutic measure into internment does not constitute a double sanction, but rather the consideration of relevant elements for the prognosis of dangerousness. (consid. 5.4, 5.5)
- Inadmissibility of evidence (claim upheld): The Federal Supreme Court upholds the appellant's primary claim. The investigation for attempted murder was opened on January 29, 2021, making mandatory defense clearly applicable. However, the court-appointed defense attorney was not designated until February 11, 2021. In the interim, on February 8, 2021, the public prosecutor conducted the hearing of two key witnesses (E.________ and F.________). These hearings took place not only before the appointment of the defense attorney but also in the absence of the appellant, based on a decision to restrict his participation rights that was only notified to his lawyer on February 15, 2021, i.e., after the hearings. (consid. 6.6.2)
The Federal Supreme Court rules that this procedure violates both the rules on mandatory defense (former Art. 131 CrimPC) and, flagrantly, the right to participate in the administration of evidence (Art. 147 CrimPC). The decision to restrict participation, which was notified late, had no legal effect at the time of the hearings. Consequently, in accordance with Art. 147 para. 4 CrimPC, the transcripts of the hearings of witnesses E.________ and F.________ on February 8, 2021, are absolutely inadmissible as evidence against the appellant. The fact that these witnesses were re-examined later in the presence of the defense does not "cure" this defect. Since the lower court based its conviction, among other things, on this inadmissible evidence, its decision must be set aside. (consid. 6.6.2)
Outcome
The Federal Supreme Court partially upholds the appeal. It sets aside the judgment of the Cantonal Court of November 25, 2025, and remands the case for a new decision. The lower court must conduct a new assessment of the evidence without taking into account the hearings of witnesses E.________ and F.________ from February 8, 2021, which were deemed inadmissible. The appellant's other claims are rejected to the extent that they are admissible. (consid. 1, 8)
