TF, 05.03.2026, 6B_384/2025
Facts
A national of Kosovo, A., who holds a permanent residence permit (permit C) and is the father of two Swiss children, was sentenced by the Supreme Court of the Canton of Bern to a 35-month custodial sentence (with 6 months to be served) and expulsion from Switzerland for a period of six years. The convictions primarily concern professional and gang-related theft, receiving stolen goods, property damage, trespassing, as well as simple bodily harm and repeated threats against his ex-wife, B..
The facts include a series of burglaries in villas in February 2019, where the appellant was identified through mobile phone data and the discovery of stolen items in his room. He also participated in another burglary as a driver and lookout. Furthermore, about twenty stolen watches were found at his home. The accused also committed serious domestic violence, including a physical assault that caused a broken nose to his ex-wife and death threats, notably via a threatening profile picture on the "Viber" application.
The appellant filed a criminal appeal with the Federal Supreme Court, challenging his convictions for theft, receiving stolen goods, and threats on the grounds of arbitrary assessment of evidence. He primarily opposes his expulsion, arguing that it would constitute a disproportionate measure violating his right to family life (art. 8 ECHR) due to his ties with his two minor children in Switzerland.
Law
The Federal Supreme Court reiterates that it is not an appellate authority and only reviews the establishment of facts from the perspective of arbitrariness (art. 9 Const.). A conviction can only be overturned if the assessment of evidence by the cantonal authority is manifestly unsustainable. The principle of in dubio pro reo does not have a broader scope than the prohibition of arbitrariness.
Regarding judicial expulsion,art. 66a para. 1 SCC provides for mandatory expulsion for certain offenses, including aggravated theft. The judge may exceptionally waive this under the hardship clause (art. 66a para. 2 SCC) if the expulsion places the foreign national in a situation of serious personal hardship and their private interest in remaining in Switzerland outweighs the public interest in their departure. This weighing of interests must respect the principle of proportionality guaranteed by the Constitution (art. 5 para. 2 Const.) and the European Convention on Human Rights (art. 8 ECHR).
The criteria to be considered in this balancing test include the severity of the offense, the length of stay, the degree of integration, the family situation (notably the best interests of the children), and ties to the country of origin. Case law establishes that in the event of a sentence of two years or more, the public interest in expulsion generally prevails, barring exceptional circumstances.
Application to the specific case
The Federal Supreme Court rejects the appellant's grievances regarding the assessment of evidence, characterizing them as merely challenging the findings of fact. It finds that the cantonal court did not act arbitrarily by relying on a body of convergent evidence (telephony data, stolen items found in his room, similar modus operandi) to convict him of theft. Likewise, the conviction for receiving stolen goods is upheld, as the large number of stolen watches and the appellant's implausible explanations were sufficient to establish, at the very least, dolus eventualis. The conviction for making threats is also maintained, as the conflictual context with his ex-wife justifies interpreting his "Viber" profile picture as a threat directed at her.
Regarding the expulsion, the Federal Supreme Court conducts a detailed balancing of interests. On one hand, the appellant's private interest in remaining in Switzerland is acknowledged due to the presence of his two children. However, this interest is qualified: the appellant arrived in Switzerland as an adult (age 23), has not lived with his children for over six years, his visitation rights are limited and exercised irregularly, and the relationship can be maintained through modern means of communication and visits to Kosovo, a country the children are familiar with. On the other hand, the public interest in his expulsion is deemed paramount. The appellant was sentenced to 35 months, well exceeding the two-year threshold. He demonstrated considerable criminal intent and is a repeat offender in the context of domestic violence. His integration into Switzerland is described as "largely deficient": he relies on social assistance, has accumulated significant debt (including unpaid child support), and has shown a persistent disregard for the Swiss legal order. Furthermore, he maintains strong social and family ties to his country of origin, Kosovo, where his reintegration would not pose any major difficulties.
The Federal Supreme Court concludes that the expulsion does not place the appellant in a situation of severe personal hardship within the meaning of the hardship clause and that, in any event, the measure is proportionate. The public interest in safety and the prevention of further offenses clearly outweighs the appellant's private interest.
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The judgment of the Supreme Court of the Canton of Bern, including the 35-month custodial sentence and the six-year expulsion from Switzerland, is upheld. The request for legal aid is also denied, as the appeal is deemed to have no prospect of success.
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