Swiss Federal Supreme Court, 07/29/2026, 6B_688/2025
Facts
On April 18, 2021, A.________ and an unidentified accomplice broke into an apartment. Alerted by the noise, a neighbor, B., intervened. A., with his face masked, opened the door, and his accomplice forcibly pulled the neighbor inside. She was held on the floor while A.________ stood nearby, creating an intimidating numerical superiority. After about five minutes, the two men released the victim and fled. B.________ suffered contusions and psychological distress, resulting in a one-week work incapacity.
The Zurich District Court found A.________ guilty of unlawful imprisonment and simple bodily harm, sentencing him to an 11-month suspended prison term. No deportation order was issued. Both the defendant and the public prosecutor's office announced they would appeal. Subsequently, the public prosecutor's office withdrew its main appeal but filed a cross-appeal requesting that a deportation order be issued.
The Zurich Cantonal Court upheld the conviction and the sentence, but, ruling on the public prosecutor's cross-appeal, additionally ordered his deportation from Swiss territory for a period of five years, with an entry in the Schengen Information System (SIS). A.________ appealed this deportation to the Federal Supreme Court.
Legal Analysis
The Federal Supreme Court reiterates the principles governing the public prosecutor's standing to appeal and, more specifically, the conditions for the admissibility of a cross-appeal (Art. 401 of the Criminal Procedure Code, CPC).
UnderArt. 381 para. 1 CPC, the public prosecutor's office, as a representative of the public interest, has broad authority to file an appeal, whether in favor of or against the defendant.
However, a cross-appeal is an accessory procedural instrument, which assumes that the party filing it had initially waived a main appeal and had therefore accepted the first-instance judgment. Its use by the public prosecutor's office is subject to the principle of good faith. A cross-appeal is considered abusive and contrary to good faith if it is used as a pressure tactic to induce the defendant to withdraw their own appeal. This is particularly the case when the public prosecutor's office uses it to circumvent the prohibition against worsening the defendant's position (reformatio in peius, Art. 391 para. 2 CrimPC), which applies when only the defendant appeals.
According to case law (citing BGE 147 IV 505), a cross-appeal by the public prosecutor regarding the sentence is admissible if the court of first instance did not follow their initial sentencing requests and the cross-appeal is limited to reiterating those requests. Conversely, contradictory procedural behavior, such as withdrawing a principal appeal followed by a cross-appeal on a point not initially contested, may constitute an abuse of rights.
Application to the specific case
The Federal Supreme Court analyzed the public prosecutor's procedural conduct. At the first instance, the prosecutor had requested neither in the indictment nor during the proceedings that an expulsion be ordered, even though kidnapping is a listed offense (Art. 66a para. 1 let. g SCC) which, in principle, makes expulsion mandatory.
By withdrawing their principal appeal, the public prosecutor signaled their intention to accept the first-instance judgment, which did not order an expulsion. Filing a cross-appeal after the defendant had already submitted their notice of appeal, specifically to request an expulsion for the first time, constitutes contradictory behavior that violates the principle of good faith.
The Federal Supreme Court concluded that this procedural maneuver was likely intended to pressure the defendant into withdrawing their own appeal by threatening them with a harsher outcome. By introducing the issue of expulsion solely through a cross-appeal, the public prosecutor sought to circumvent the prohibition of *reformatio in peius*.
The argument from the lower court that the tribunal was required to examine the expulsion *ex officio* (*iura novit curia*) does not justify declaring an abusively filed cross-appeal admissible. If the public prosecutor had truly intended to correct what they termed an "oversight," they should have maintained their principal appeal.
Consequently, the Cantonal Court violated federal law (Arts. 401 and 391 para. 2 CrimPC) by admitting the public prosecutor's cross-appeal and ordering an expulsion in violation of the prohibition of *reformatio in peius*.
Outcome
The Federal Supreme Court granted A.________'s appeal. It set aside the judgment of the Zurich Cantonal Court and remanded the case for a new decision. The cantonal authority must declare the public prosecutor's cross-appeal inadmissible and issue a new ruling on the costs and legal fees of the appeal proceedings, without ordering an expulsion. The costs of the federal proceedings are to be borne by the Canton of Zurich, which must also pay legal fees to the appellant.
