Federal Supreme Court, 02.09.2026, 6B_630/2024
Facts
By penal order dated October 18, 2023, the Aargau Public Prosecutor's Office convicted A. of theft and assault, imposing a suspended monetary penalty and a fine. The order, sent by registered mail, was returned marked "unclaimed" after the postal holding period expired on October 27, 2023. The defendant filed an objection on December 15, 2023, which was declared inadmissible due to being filed out of time. This decision was upheld by the Aargau High Court. Before the Federal Supreme Court (TF), A. challenged the validity of the notification, citing language difficulties, insufficient information regarding procedural rights, and a violation of constitutional and conventional guarantees of a fair trial (considerations 2.1 and 2.2).
Law
According to arts. 353 para. 3 and 354 para. 1 CrimPC, a penal order must be served in writing and may be challenged by an objection within ten days. In accordance withart. 85 para. 4 let. a CrimPC, an uncollected registered letter is deemed served on the seventh day following the unsuccessful delivery attempt, provided the recipient should have expected such a notification. This fiction of service stems from the principle of procedural good faith, which requires parties to make the necessary arrangements to receive communications from authorities once a procedural relationship has been established (considerations 2.3.1.1 and 2.3.1.2).
The burden of proving proper service lies with the authority intending to derive legal consequences from it. However, there is a rebuttable presumption that the notice of a registered letter was correctly placed in the recipient's mailbox or P.O. box. This presumption can only be overturned by concrete evidence making a delivery error highly probable. The Federal Supreme Court reviews the cantonal assessment of evidence only under the standard of arbitrariness (considerations 2.3.1.2 and 2.3.2).
Application to the specific case
The Federal Supreme Court notes that the appellant had been interviewed by the police on May 6 and July 2, 2023. The signed transcripts confirm that he had been informed of his rights and obligations, including the possibility of receiving registered mail from the Public Prosecutor's Office and the need to arrange for its receipt. The cantonal authority could therefore conclude, without arbitrariness, that he should have expected the notification of a penal order (considerations 2.4.3 and 2.5).
Claims regarding the absence of an interpreter during the first hearing, insufficient procedural information, and the need for mandatory defense are inadmissible, as they were not validly raised before the cantonal court. The Federal Supreme Court also reiterates that the right to linguistic assistance does not imply the full translation of all procedural documents. Criticisms concerning the establishment of facts remain essentially appellate in nature and fail to demonstrate any arbitrariness (considerations 2.4.1 to 2.4.3).
The Federal Supreme Court confirms that the circumstances of the appellant's residence in an asylum seeker accommodation center are insufficient to overturn the presumption of service. No concrete evidence of a failure in mail delivery was established. The fiction of service also applies to penal orders, without any special requirements linked to their legal scope. The order is therefore deemed served on October 27, 2023, with the objection deadline having expired on November 6, 2023. The objection filed on December 15, 2023, is thus late (considerations 2.2 and 2.5).
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible and confirms the inadmissibility of the objection as well as the finality of the penal order. It denies legal aid due to the lack of prospects for success of the appeal and orders the appellant to pay the court costs, set at CHF 1,200, taking into account his financial situation (consideration 3).