Federal Supreme Court, 30.06.2026, 6B_304/2026
Facts
Between December 2023 and January 2024, A.________ (hereinafter: the appellant) placed seven orders on various online sales platforms using the identities of third parties (notably B., F., and I.________) and email addresses created for the occasion. Her goal was to obtain the goods without paying for them. The victims of the identity theft subsequently received invoices and payment reminders for orders they had not placed, while the appellant received the packages. (Facts, let. B.a)
The appellant is a repeat offender with two prior convictions on her criminal record. The first, dating from 2019, concerned attempted fraud and forgery of documents. The second, handed down in 2022, was a six-month suspended custodial sentence for professional fraud, regarding similar acts committed between 2015 and 2021. (Facts, let. B.b)
The Police Court found the appellant guilty of fraud, minor fraud, and identity theft. It revoked the suspended sentence granted in 2022 and sentenced her to a total custodial sentence of eight months, as well as a fine. The Criminal Appeals Court of the Vaud Cantonal Court upheld this judgment. The appellant filed a criminal appeal with the Federal Supreme Court, seeking acquittal on the charge of identity theft on the grounds that this offense is absorbed by that of fraud (imperfect concurrence), and requested a reduction of her sentence to seven months. (Facts, let. A, B, and C)
Law
The Federal Supreme Court examines the relationship between the offense of fraud (Art. 146 SCC) and that of identity theft (Art. 179 SCC). Fraud protects assets and penalizes the act of cunningly misleading a person to induce them to perform acts prejudicial to their financial interests with the intent of unlawful enrichment. Identity theft, recently introduced into the Criminal Code, protects personality and honor by punishing the use of another person's identity without their consent, with the intent to harm them or obtain an unlawful advantage. (consid. 1.1, 1.2, 3.1)
The central question is whether these two offenses are in perfect concurrence (the perpetrator is punished for both) or in imperfect concurrence by absorption (only the more serious offense, fraud, is retained). Imperfect concurrence is admitted when one of the provisions encompasses the other in its essential elements. In this case, the rules on the concurrence ofArt. 49 SCC do not apply. (consid. 1.3)
The Federal Council's Dispatch regarding the introduction ofArt. 179 SCC states that if identity theft is used to commit fraud, the fraud offense "may" encompass the identity theft. However, the majority of legal scholars oppose this view and argue for a perfect concurrence of offenses. The main arguments are that the two provisions protect distinct legal interests (assets vs. personality rights) and that the injured parties are generally not the same (the merchant deceived in the fraud, and the person whose identity was stolen in the identity theft). (consid. 3.1)
The Federal Supreme Court reiterates its established case law regarding the concurrence between fraud (Art. 146 SCC) and forgery of documents (Art. 251 SCC). In this configuration, a perfect concurrence is systematically recognized because the protected legal interests are different (assets on one hand, and the specific trust placed in a document on the other). This solution applies even when the forgery is merely a means to commit the fraud. (consid. 3.2)
Application to the specific case
The Federal Supreme Court finds that the appellant's conduct infringed upon two distinct legal interests and harmed different individuals. On one hand, she harmed the assets of online sales platforms, which were victims of fraud (Art. 146 SCC). On the other hand, she infringed upon the personality and honor of the individuals whose identities she stole, which constitutes the offense underArt. 179decies SCC. (consid. 4)
The Federal Supreme Court chooses to depart from the suggestion made in the Federal Council's Dispatch, which it deems insufficiently developed and phrased in a discretionary manner ("may"). It favors an analysis based on the distinction between protected legal interests and victims, thereby aligning with the majority of legal scholars and applying by analogy its case law on the concurrence between fraud and forgery of documents. The fact that both offenses share a specific intent (unlawful advantage/unjust enrichment) or that one is punished more severely than the other is not considered decisive. (consid. 3.3, 4)
The introduction of Art. 179 SCC aimed to close a loophole, including cases where identity theft is a means to commit another offense, because the infringement of the personality rights of the identity theft victim deserves its own sanction, distinct from the financial harm suffered by the fraud victim. Consequently, the Federal Supreme Court concludes that fraud and identity theft are in perfect concurrence within the meaning of Art. 49 SCC. The appellant should therefore have been convicted of both offenses. (consid. 4)
Issue
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The conviction for identity theft in ideal concurrence with fraud is upheld. The appellant's request for a sentence reduction, based on her partial acquittal, is rendered moot. The appellant's request for legal aid is granted. (consid. 1, 5, 6)