Federal Supreme Court, 07.07.2026, 6B_458/2024
Facts
On December 21, 2019, an altercation broke out in a pub in Basel between A.________ (the appellant) and B.________ (the respondent and complainant). During this dispute, the appellant injured the respondent's face with a glass. (Sachverhalt A.a)
At first instance, the Basel-Stadt Criminal Court found the appellant guilty of attempted grievous bodily harm and sentenced her to a 20-month suspended custodial sentence, as well as ordering her to pay 4,000 CHF in compensation for non-pecuniary damage to the respondent. (Sachverhalt A.b)
Upon appeal by the appellant, the Court of Appeal of the Canton of Basel-Stadt reclassified the facts as simple bodily harm committed with a dangerous object (Art. 123 para. 2 subpara. 2 SCC). It sentenced the appellant to a 14-month suspended custodial sentence and increased the compensation for non-pecuniary damage to 5,000 CHF. (Sachverhalt B)
The appellant has filed a criminal appeal with the Federal Supreme Court. She primarily seeks her acquittal and, alternatively, the annulment of the cantonal judgment and the referral of the case back to the previous instance for a new decision. She notably invokes a violation of her right to be heard, arbitrary establishment of facts, and incorrect legal classification. (Sachverhalt C)
Law
The Federal Supreme Court reiterates the legal principles relevant to the outcome of the dispute. It first sets out the guarantees stemming from the right to be heard (Art. 29 para. 2 Cst.), which includes the authority's obligation to provide reasons for its decisions (Art. 81 para. 3 CrimPC ; Art. 112(1)(b) of the Federal Supreme Court Act (LTF)). The reasoning must allow the concerned party to understand the scope of the decision and to challenge it with full knowledge of the facts. A violation of this right, being formal in nature, generally leads to the annulment of the decision, unless it can be exceptionally remedied. (consid. 1.3.4, 3.3.2)
The Court also reiterates that an authority may decline to admit evidence through anticipatory assessment if it deems the fact to be proven is already established or that the requested evidence is incapable of altering its conviction. Such an anticipatory assessment can only be reviewed by the Federal Supreme Court under the standard of arbitrariness. (consid. 1.3.2)
Regarding the establishment of facts, the Federal Supreme Court reiterates that this can only be challenged if it is manifestly inaccurate—that is, arbitrary—or if it is based on a violation of the law. Arbitrariness is only established if the decision is unsustainable in its outcome, not merely in its reasoning. The appellant must demonstrate arbitrariness through precise and detailed argumentation (Art. 106(2) LTF). (consid. 2.3)
Finally, the Federal Supreme Court distinguishes the constituent elements of the offense of simple bodily harm with a dangerous object (Art. 123(2)(2) of the Swiss Criminal Code (CP)). Subjectively, conditional intent (dolus eventualis) is sufficient. Determining what the perpetrator knew, intended, and accepted is a question of fact. Conversely, classifying these facts as falling under intent (direct or conditional) or negligence is a question of law. The cantonal authority is obligated to fully set out the facts upon which it relies to establish the existence of intent. (consid. 3.3.1)
Application to the specific case
The Federal Supreme Court examines the various grievances raised by the appellant. It rejects the criticisms regarding the violation of the right to be heard concerning the refusal to admit a modified video as evidence and the opportunity to comment on the new legal classification. The Federal Supreme Court finds that the lower court validly conducted an anticipatory assessment of the evidence and that the appellant had the opportunity to express her views on the reclassification of the facts. (consid. 1.4.1, 1.4.2)
However, the Federal Supreme Court upholds the appellant's grievance regarding the lack of reasoning concerning the violation of the principle of celerity. The lower court did not address this issue at all in its judgment, despite it having been raised, which constitutes a violation of the right to be heard. (consid. 1.4.3)
The Federal Supreme Court also finds that the appellant's criticisms regarding the establishment of facts are essentially appellate in nature and fail to demonstrate arbitrariness. The lower court conducted a sustainable assessment of the evidence, particularly the video recording and witness testimonies, to reconstruct the dynamics of the altercation. It concluded that the appellant had consciously raised her arm and directed the glass toward the respondent's head, which rules out a completely uncontrolled throw. (consid. 2.4.2, 2.4.3)
However, the Federal Supreme Court upholds the appellant's primary grievance regarding the reasoning for the legal classification. After dismissing the charge of attempted grievous bodily harm by excluding intent (including eventual intent) in that regard, the lower court convicted the appellant of simple bodily harm with a dangerous object without examining or justifying the existence of the subjective element (direct or eventual intent) required for this offense. The contested judgment does not make it possible to understand whether the lower court concluded that the appellant intended to injure the respondent or if she merely accepted that outcome. This omission constitutes a violation of the duty to provide reasoning (Art. 112 para. 1 let. b LTF). (consid. 3.4)
Furthermore, the Federal Supreme Court notes that the lower court completely failed to examine the issue of self-defense (Art. 15 SCC), even though the appellant had been forcefully grabbed by the face by the respondent just before throwing the glass. By failing to rule on the existence of a potential attack and the proportionality of the response, the lower court once again violated its duty to provide reasoning and the appellant's right to be heard. (consid. 3.5)
The issues of sentencing and compensation for non-pecuniary damage do not need to be examined, as they depend on the new decision to be rendered after the case is remanded. (consid. 4)
Outcome
The Federal Supreme Court partially allows the appeal. It annuls the judgment of the Court of Appeal of the Canton of Basel-Stadt pursuant toArt. 112 para. 3 LTF due to a lack of reasoning. The case is remanded to the lower court for a new decision. The court must rule on the subjective element of the offense of simple bodily harm, examine the issue of self-defense (or potential excessive self-defense), and, if necessary, rule again on the sentence (taking into account the grievance regarding the principle of speed) and on the civil claims. (consid. 1, 5)
Court costs are partially charged to the appellant for the portion of her appeal that was rejected. Her request for legal aid is denied due to a lack of prospects of success on those points. The Canton of Basel-Stadt is ordered to pay legal costs to the appellant for the portion in which she was successful. (consid. 2, 3, 4)