Federal Supreme Court, 06.07.2026, 6B_822/2025
Facts
In 2022, an Afghan national, A., was convicted by the Aarau District Court of pornography (Art. 197 para. 4 of the Swiss Criminal Code) and received a suspended monetary penalty and a fine, along with a 5-year expulsion order. On appeal, the Aargau Cantonal Court upheld the sentence and expulsion in 2023. Following an initial appeal, the Federal Supreme Court overturned this decision in August 2024 and remanded the case to the cantonal court for a new ruling specifically regarding the expulsion (judgment 6B_548/2023). In August 2025, the Cantonal Court once again ordered the appellant's expulsion for 5 years. A. has filed a new criminal appeal with the Federal Supreme Court, requesting that the expulsion be overturned and that the costs be borne by the State. (Facts A. and B.)
Law The Federal Supreme Court examines two main legal issues. First, it analyzes whether there is an obstacle to the enforcement of the expulsion underArt. 66d para. 1 lit. b of the Swiss Criminal Code, in connection with the prohibition of inhuman and degrading treatment provided for in Art. 3 of the European Convention on Human Rights (ECHR). For such an obstacle to be recognized, the foreign national must demonstrate in a credible and concrete manner that there is a real, personal, and serious risk of being subjected to prohibited treatment upon return to their country of origin. The general human rights situation in the country is not sufficient on its own; an individualized threat is required. (consid. 1.3)
Second, the Court addresses the concept of a "serious case of personal hardship," provided for by the exception clause ofArt. 66a para. 2 of the Swiss Criminal Code. This provision allows for the waiver of expulsion if it would have exceptionally serious consequences for the foreign national. The examination is based on a balancing of interests, guided by the right to respect for private and family life guaranteed byArt. 8 ECHR. The determining criteria include the length of stay in Switzerland, the degree of social and professional integration, family ties, and the situation in the country of origin, weighed against the public interest in expulsion, which depends on the severity of the offense committed. Ordinary integration is not enough; particularly strong ties to Switzerland are required. (consid. 2.3)
Application to the case
The appellant argues that expulsion to Afghanistan would expose him to treatment contrary to theArt. 3 ECHR due to a combination of risk factors: his Hazara ethnicity, his past as a member of a local militia while a minor, and his status as a "Westernized" individual after nearly ten years in Switzerland. The Federal Supreme Court, upholding the lower court's analysis, rejects these arguments. It notes that, according to case law and reports from the State Secretariat for Migration (SEM), belonging to the Hazara ethnic group does not in itself constitute collective persecution. Regarding his past as a militiaman, the events are dated, his role was subordinate, and he failed to establish a credible, current, and concrete threat from the Taliban. As for his "Westernization," while his readjustment may be difficult, it does not create a concrete and personal risk of inhuman treatment. The Court also dismisses the claims regarding the risk of apostasy and double jeopardy as either inadmissible new facts or unsubstantiated allegations. In conclusion, neither the isolated examination of each risk factor nor their overall assessment establishes an obstacle to the enforcement of the expulsion. (consid. 1.1, 1.2, 1.3.1, 1.3.2, 1.3.3, 1.3.4, 1.4)
The appellant then invokes a case of hardship within the meaning of Art. 66a para. 2 of the Swiss Criminal Code, arguing that his nearly ten-year stay in Switzerland has created close social ties protected by Art. 8 ECHR. The Federal Supreme Court reiterates that the length of stay is not the sole criterion and that integration exceeding the norm is required. However, in its initial remand judgment, it had already determined that the appellant's integration after seven years of residence was not exceptional. The additional time elapsed due to the proceedings is not sufficient to alter this assessment. The Federal Supreme Court also upholds the cantonal court's analysis that, despite the lack of close family in Afghanistan, the appellant—who is young, in good health, and has professional experience—has realistic prospects for reintegration in his country of origin, where he spent the majority of his life. Consequently, the expulsion does not constitute a serious case of personal hardship. (consid. 2.1, 2.2, 2.3)
Outcome
The Federal Supreme Court concludes that the expulsion violates neither Art. 3 ECHR nor Art. 8 ECHR. The lower court therefore did not violate federal law by ordering a 5-year expulsion. The appeal is dismissed to the extent that it is admissible. The court costs, amounting to 3,000 francs, are to be borne by the appellant. (consid. 3 and operative part)