Federal Supreme Court, 09.03.2026, 6B_211/2024
Facts
In the course of criminal proceedings against brothers B.B.________ and C.B., A. stated to the police on January 25, 2021, in the capacity of a witness, that the two brothers had threatened a certain D. with death. However, during the trial hearing against the brothers on November 3, 2021, A., again heard as a witness, retracted her statements. She claimed to have lied to the police with the goal of helping her friend D.________ obtain financial compensation from the brothers. Following this retraction, the brothers were largely acquitted. New proceedings were opened against A.________ for false accusation and perjury. The court of first instance acquitted her. Upon appeal by the public prosecutor's office, the Aargau Cantonal Court acquitted her of the charge of false accusation but found her guilty of perjury (Art. 307 SCC) for her initial statements to the police. She was given a suspended monetary penalty and a fine. A.________ is appealing this conviction to the Federal Supreme Court.
Law
The Federal Supreme Court is examining several grievances raised by the appellant.
- Admissibility of evidence (Art. 158 CrimPC): The appellant argues that her hearing on November 3, 2021, during which she incriminated herself, is inadmissible. She contends that as soon as she confessed to lying, she should have been considered a defendant and informed of her rights accordingly (right to remain silent, right to an attorney). The Federal Supreme Court reiterates the distinction between the status of a witness (Art. 162 CrimPC) and that of a defendant (Art. 111 CrimPC). Status is determined by the authority at the time of the hearing. A witness who is not suspected of having participated in the offense under investigation must be informed of their right to refuse to testify if they risk incriminating themselves (Art. 169 para. 1 let. a CrimPC). The extended rights of a defendant under Art. 158 CrimPC only apply when a concrete suspicion weighs upon the person.
- Right against self-incrimination (nemo tenetur se ipsum accusare) and the principle of in dubio pro reo (Art. 113 CrimPC, Art. 32 Const.): This principle prohibits forcing a defendant to contribute to their own conviction. Their silence cannot be interpreted as an admission of guilt. However, case law allows a defendant's silence to be taken into account in the overall assessment of evidence when significant incriminating elements call for an explanation on their part. This does not constitute a reversal of the burden of proof.
- Arbitrary assessment of facts (Art. 9 Const.): A decision is arbitrary when it is manifestly untenable, in flagrant contradiction with the factual situation, or violates a rule of law in a shocking manner. It is not enough that another solution might appear possible.
Application to the specific case
- Regarding the admissibility of the hearing: The Federal Supreme Court ruled that the appellant was correctly heard as a witness on November 3, 2021. At that time, she was not suspected of having participated in the offenses attributed to the B.B.________ and C.B.________ brothers. The suspicion of perjury only arose at the time of her own statement. She had been duly informed of her right to refuse to testify in order not to incriminate herself (Art. 169 CrimPC) and chose not to exercise it. Her statements are therefore fully admissible. The situation differs from the ECHR judgment in Zaichenko v. Russia, where the person was a suspect from the beginning of the interrogation.
- Regarding the violation of the nemo tenetur principle: The Federal Supreme Court rejected this claim. The conviction is not based on the appellant's subsequent silence, but primarily on her clear and spontaneous admissions during the hearing on November 3, 2021, where she admitted to having lied to the police. She placed herself in a "declaratory dilemma" by providing two diametrically opposed versions. Faced with this flagrant contradiction and her admissions, it was reasonable to expect her to provide explanations for her defense. Her refusal to do so could, without violating her rights, be taken into account by the lower court in the overall assessment of the evidence.
- Regarding arbitrariness: The Federal Supreme Court declared the claim of arbitrariness in the establishment of facts inadmissible. The appellant merely presented her own assessment of the evidence and suggested that another conclusion (notably that she had been pressured to retract) was possible. She failed to demonstrate how the conclusion of the cantonal court, which deemed her admissions credible—particularly in light of a financial arrangement concluded between the brothers and D.________—would be manifestly untenable.
Outcome
The Federal Supreme Court dismissed the appeal to the extent that it was admissible. The conviction for perjury handed down by the Aargau Cantonal Court is upheld. The appellant's request for legal aid is denied, as her appeal was devoid of any chance of success. The court costs are charged to her.