Assault, property damage, right to be heard, and allocation of procedural costs

Swiss Federal Supreme Court, 10.02.2026, 6B_605/2024

Facts

An individual, A.________ (the appellant), was found guilty by the Criminal Appeals Court of the Vaud Cantonal Court of several offenses, including simple bodily harm, assault, property damage, and various traffic violations, notably driving a vehicle without civil liability insurance. He was sentenced to 15 months of imprisonment.

The main facts established are as follows:

1. On June 6, 2021, the appellant first struck a passerby, B.________ (the complainant), with a violent punch, causing him to lose consciousness. Subsequently, along with other unidentified individuals, he repeatedly kicked the complainant while he was on the ground, leading to a second loss of consciousness.
2. On July 30, 2022, he rode a non-homologated light motorcycle at night without a license, without a helmet, without lights, and without civil liability insurance.
3. On November 3, 2022, he cracked and then shattered two display windows of a building. The complaint for this damage was filed by the company C.________ Sàrl, the administrator of the building's condominium association (PPE).

The appellant filed a criminal appeal with the Federal Supreme Court. He contests his conviction for assault and property damage, as well as the allocation of legal costs for the first and second instance proceedings.

Law

The Federal Supreme Court examined several grievances raised by the appellant, based on the following legal principles:

1. Right to be heard and confrontation (art. 6 para. 3 let. d ECHR, art. 29 para. 2 Swiss Constitution): The right to a fair trial guarantees the accused the right to examine or have examined witnesses against them. A conviction cannot be based on statements without the accused having had a sufficient opportunity to challenge them. However, according to the case law of the ECtHR (notably the judgment in Schatschaschwili v. Germany), the use of statements from an absent witness is possible if a three-step process is followed:
   1. There must be a serious reason justifying the witness's non-appearance (death, inability to locate them despite reasonable efforts, etc.).
   2. It must be determined whether the statement constitutes the sole or decisive basis for the conviction.
   3. It must be verified that there are sufficient compensatory factors to counterbalance the difficulties caused to the defense and to ensure the overall fairness of the proceedings (e.g., judicial caution, corroboration by other evidence, the opportunity for the accused to provide their version of events).
2. Presumption of innocence and arbitrary assessment of evidence (Art. 9 Cst., Art. 10 CrimPC) : The Federal Supreme Court reviews the establishment of facts and the assessment of evidence only under the standard of arbitrariness. A decision is arbitrary if it is manifestly untenable, contradicts the facts, or violates a clear rule of law. The principle of *in dubio pro reo* (the benefit of the doubt goes to the accused) is a facet of the presumption of innocence and has no broader scope than the prohibition of arbitrariness in the assessment of evidence. A conviction may be based on a body of convergent evidence, even if each piece of evidence taken in isolation might be insufficient.
3. Property damage and standing to file a complaint (Art. 144 SCC, Art. 30 SCC, Art. 115 CrimPC) : The offense of property damage is prosecuted only upon complaint. The status of "injured party," and thus the right to file a complaint, belongs to any person whose rights have been directly affected. For property damage, this primarily concerns the owner, but also any person with a direct interest in the preservation of the item (tenant, etc.). The right to file a complaint may be exercised by a representative. For condominium ownership (PPE), the question arises as to whether the administrator may file a complaint without prior authorization from the assembly of co-owners, in light ofArt. 712t SCC.
4. Allocation of procedural costs (Art. 426 and 428 CrimPC) :
   1. First instance (Art. 426 CrimPC): The convicted defendant bears the costs. In the event of a partial acquittal, the costs are charged to the defendant proportionally, unless the dropped charges generated significant additional costs and the defendant did not culpably cause the proceedings to be opened.
   2. Appellate proceedings (Art. 428 CrimPC): Costs are allocated based on the success or failure of the parties. A party who prevails may nevertheless be ordered to pay costs if the modification of the decision is of minor importance.

Application to the specific case

The Federal Supreme Court applies these principles to the appellant's various grievances:

1. Regarding the conviction for assault and the right to be heard: The appellant complains that the complainant (the victim of the assault) was never cross-examined. The Federal Supreme Court rejects this grievance by applying a three-step test:
   1. Reason for absence: The complainant had left Switzerland without leaving a forwarding address. The cantonal authorities took reasonable steps (verifying the address, contacting municipal authorities and the police) to locate them, without success. Initiating international searches without concrete leads would have been disproportionate. The absence was therefore justified.
   2. Evidence not solely based on one source: The conviction does not rely solely on the complainant's statements. It is corroborated by a body of evidence: the appellant's partial confession (admitting to having struck the victim), the consistency and clarity of the complainant's statements, and a medical report consistent with the account of the assault.
   3. Compensatory measures: The cantonal court examined the credibility of the complainant's statements with particular care. The appellant had full opportunity to present his own version of the facts and to challenge that of the victim. The fairness of the proceedings was therefore respected. The conviction for assault is not arbitrary.
2. Regarding driving without civil liability insurance: The appellant argues that the indictment was imprecise and that the judges should have classified it as a minor case. The Federal Supreme Court dismisses these arguments, ruling that the indictment contained the essential elements and that the decision not to classify it as a minor case was sufficiently justified by the fact that the driving occurred at night, increasing the risk of an accident.
3. Regarding property damage and the validity of the complaint: The appellant maintains that the condominium administrator, C.________ Sàrl, did not have the standing to file a complaint without authorization from the assembly of co-owners. The Federal Supreme Court rejects this grievance for two reasons:
   1. Primary reason: The management and preservation of the building's common areas fall under the administrator's legal duties (Art. 712t para. 1 CC). Filing a criminal complaint for damage caused to these common areas falls within this scope. This does not constitute legal action within the meaning of Art. 712t para. 2 CC, which would require prior authorization.
   2. Secondary reason: Even if the administrator had not been able to act on behalf of the condominium, she was herself a resident of the damaged building. In this capacity, she had a direct interest in the preservation of the building and could therefore be considered an "injured party" (Art. 115 CrimPC) and file a complaint in her own name. The complaint is therefore valid.
4. Regarding procedural costs:
   1. First instance: The Federal Supreme Court upholds the appellant's grievance. The appellant was acquitted at first instance of charges of theft, fraudulent use of a computer, and trespassing. These offenses constituted a set of facts distinct from the others. By imposing all first-instance costs on him, the cantonal court violated the presumption of innocence. The case must be remanded for a new, proportional allocation of costs.
   2. Second instance: The Federal Supreme Court rejects the grievance. Although the appellant obtained a partial acquittal on appeal (reclassification of violence against authorities to insult), this success is of very minor importance, as the 15-month sentence was maintained. The court of appeal could therefore, without abusing its discretionary power, charge the entire costs of the appeal to him pursuant to Art. 428 para. 2 let. b CrimPC.

Outcome

The appeal is very partially upheld. The judgment of the Criminal Court of Appeal is set aside only regarding the allocation of first-instance procedural costs. The case is remanded to the cantonal authority to rule again on this point, taking into account the appellant's partial acquittal. For the remainder, the appeal is dismissed. The costs of the federal proceedings are primarily charged to the appellant.

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