Federal Supreme Court, 19.06.2026, 6B_788/2025
Facts
A man (hereinafter: the appellant) is accused of having requested unemployment benefits for the months of July and August 2022 by falsely declaring that he had neither worked nor been incapacitated for work. In reality, he had engaged in gainful employment during this period, generating gross income of CHF 2,211.70 and CHF 2,471.80, and had been on sick leave. He thus unduly received unemployment benefits of CHF 3,921.45 for July 2022. The payment for August 2022 was not made due to suspension days. The district court convicted him of multiple counts of fraud, partially attempted (Art. 146 para. 1 SCC), sentencing him to 2 months' imprisonment and ordering his expulsion from the country for 5 years. The cantonal court rejected the appellant's appeal, which was limited to the length of the sentence and the expulsion. The appellant has filed an appeal in criminal matters with the Federal Supreme Court, seeking a full acquittal and, alternatively, a conviction for obtaining social insurance benefits unlawfully (Art. 148a SCC) or the cancellation of the expulsion. (Sachverhalt A, B, C)
Law
The Federal Supreme Court reiterates several legal principles. First, regarding the appeal procedure, the second-instance court reviews the first-instance judgment only on the points contested in the notice of appeal (Art. 404 para. 1 CrimPC). A subsequent extension of the appeal is excluded. Exceptionally, the appellate authority may examine uncontested points to avoid illegal or inequitable decisions (Art. 404 para. 2 CrimPC), particularly in cases of clearly erroneous application of the law, but this power must be used with restraint and does not apply to pure questions of assessment, except in cases of arbitrariness. (consid. 1.3.1, 1.3.2)
Second, it reiterates its established case law on fraud (Art. 146 SCC) regarding social benefits. Providing false or incomplete information about one's financial situation in application forms constitutes deception by commission. Cunning is recognized when the perpetrator has a legal obligation to provide information and verification of the information by the authority is not possible, not reasonably expected, or only possible at the cost of special efforts. Authorities can, in principle, rely on the completeness and accuracy of the statements made by persons subject to a duty to cooperate. This case law remains valid even after the introduction of Art. 148a SCC (unlawful receipt of benefits). (consid. 1.4.2)
Third, the change of court-appointed defense counsel (Art. 134 para. 2 CrimPC) is only granted if the relationship of trust has been seriously compromised for objective reasons or if an effective defense is no longer ensured. The defendant's mere subjective feeling is insufficient; it must be supported by concrete facts. Defense counsel is not merely a spokesperson for their client and has discretion in choosing the defense strategy. Only a serious breach of professional duties, such as a manifest procedural error, can justify a change. (consid. 2.3.1, 2.3.2)
Fourth, regarding sentencing (Art. 47 SCC), the judge has broad discretion. The Federal Supreme Court only intervenes in cases of excess or abuse of this discretion. The choice between a monetary penalty and a custodial sentence depends, in particular, on the defendant's criminal record and the preventive effectiveness of the sanction. In cases of concurrent offenses, the sentence is determined according to the principle of asperity (Art. 49 para. 1 SCC). (consid. 3.3)
Fifth, mandatory expulsion (Art. 66a para. 1 SCC) may be waived as an exception if it constitutes a case of serious personal hardship for the foreign national and the public interest in expulsion does not outweigh their private interest in remaining in Switzerland (Art. 66a para. 2 SCC). The assessment of hardship and the weighing of interests must take into account all circumstances, including the length of stay, the degree of social and economic integration, the family situation, and compliance with the legal order. (consid. 4.3.1, 4.3.2)
Application to the specific case
The Federal Supreme Court examines the appellant's grievances in turn. Regarding the conviction for fraud, it notes that the appellant had limited his appeal to the sentence and the expulsion. The finding of guilt has therefore become final. The Federal Supreme Court finds that the lower court was not required to re-examine this point ex officio under Art. 404 para. 2 CrimPC, as the conviction for fraud based on false statements to the unemployment insurance office does not constitute a qualified erroneous or arbitrary application of the law, but is consistent with its established case law. The appellant's arguments regarding the lack of cunning and the intent to enrich himself unlawfully are therefore inadmissible at this stage. (consid. 1.4.1, 1.4.2, 1.4.3, 1.4.6)
The refusal to change court-appointed counsel is also upheld. The request was made on the appellant's behalf and was based on subjective communication issues, which are insufficient to demonstrate an objective breakdown of the relationship of trust. The fact that the lawyer did not appeal the conviction is a matter of defense strategy and does not constitute a manifest error justifying their removal. An effective defense was ensured. (consid. 2.4.1, 2.4.2, 2.4.3, 2.4.4)
The sentencing is deemed to be in accordance with the law. The base sentence of one month for completed fraud, for an offense classified as very light to light, is within the judge's discretion. The moderate increase for the attempt and the criminal record is justified. The choice of a two-month unconditional custodial sentence is convincingly motivated by the appellant's numerous prior convictions (seven since 2014), which demonstrate that monetary penalties and fines have had no deterrent effect. As the prognosis for future behavior is unfavorable, the unconditional execution of the sentence is justified for reasons of special prevention. (consid. 3.4.1, 3.4.2, 3.4.3, 3.4.4)
Finally, regarding the expulsion, the Federal Supreme Court upholds the analysis of the lower court. Although the appellant arrived in Switzerland at the age of 8 and completed their schooling and training there, their integration is deemed insufficient due to professional instability, recurring reliance on social assistance, and massive debt. Above all, their extensive criminal record, which includes offenses against life and physical integrity, demonstrates a disregard for the Swiss legal order and justifies an unfavorable prognosis. Even acknowledging a case of hardship, the public interest in expulsion, driven by the high risk of recidivism, outweighs the appellant's private interest in remaining in Switzerland. The expulsion is therefore proportionate. (consid. 4.4, 4.5, 4.6.1, 4.6.2, 4.6.3, 4.7.1, 4.7.2, 4.7.3, 4.8)
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The court costs, amounting to CHF 3,000, are to be borne by the appellant. (consid. 1, 2, 3 of the operative part)