Sentencing, revocation of suspended sentences, and entry of expulsion orders into the Schengen Information System (SIS)

Federal Supreme Court, 24.02.2026, 6B_995/2025

Facts

The Dietikon District Court convicted A.________ of attempted robbery, simple bodily harm, multiple counts of trespassing, and petty theft. He was sentenced to 25 months in prison and fined 300 francs. This aggregate sentence was imposed by revoking a 170-day suspended prison sentence as well as two suspended day-fine sentences (10 and 30 day-fines) from previous convictions. The court also ordered his expulsion from Swiss territory for a period of six years and his registration in the Schengen Information System (SIS).

The Zurich Cantonal Court upheld this judgment on appeal. A.________ then filed a criminal appeal with the Federal Supreme Court, challenging the length of the sentence, its unsuspended nature, and the entry of the expulsion in the SIS. He requested that the cantonal judgment be set aside on these points and that the case be remanded to the lower court for a new decision.

Law

The Federal Supreme Court reiterates the legal principles applicable to sentencing and the registration of an expulsion in the SIS.

1. Sentencing (Art. 47 SCC) and suspension (Art. 42 and 43 SCC):
   1. The trial judge has broad discretion in determining the sentence. The Federal Supreme Court only intervenes if the cantonal authority has exceeded its discretion, based its decision on irrelevant criteria, omitted essential elements, or weighed factors incorrectly.
   2. An aggregate sentence for multiple offenses is determined according to the principle of asperity (Art. 49 SCC): the judge starts with the sentence for the most serious offense and increases it to account for the other offenses.
   3. The granting of a suspended (Art. 42 SCC) or partially suspended (Art. 43 SCC) sentence is contingent upon a favorable prognosis regarding the offender's future conduct. To assess this prognosis, the judge must consider all relevant circumstances, including criminal history, personal situation, work performance, social ties, and acknowledgment of wrongdoing. An unfavorable prognosis, particularly in cases of recidivism and lack of remorse, justifies an unsuspended sentence.
2. SIS entry for expulsion:
   1. Entering an entry ban in the SIS must adhere to the principle of proportionality. It is justified if the presence of the convicted person on the territory of a member state constitutes a threat to public security or order.
   2. Such a threat is presumed for a third-country national convicted of an offense punishable by a custodial sentence of at least one year. The requirements to establish this threat are not excessively high; it is not necessary to prove a "real, current, and sufficiently serious" danger.
   3. The determining criteria are less about the specific sentence imposed and more about the nature and frequency of the offenses, the circumstances of the act, and the person's general conduct. Offenses of a "certain" gravity, excluding minor infractions, are sufficient.
   4. If national law provides for expulsion due to criminal behavior and the threat to public order is established, the SIS entry is generally considered proportionate. However, other Schengen states retain their sovereignty and may authorize entry into their territory for humanitarian reasons or in the national interest.

Application to the specific case

The Federal Supreme Court reviewed and upheld the reasoning of the cantonal authority on all contested points.

1. Regarding sentencing:
   1. The lower court correctly applied the principle of asperity. It set a base sentence of 9 months for the attempted robbery (the most serious offense), taking into account the attempt and the fact that the failure was due to the victim's resistance.
   2. This sentence was increased by 6 months for simple bodily harm, due to the gratuitous violence and lack of empathy displayed in a public place (commuter train). An additional 30 days were added for trespassing.
   3. Regarding factors related to the offender, the criminal record (eight convictions in ten years) and the commission of new offenses during probation periods were considered significant aggravating factors, justifying a 4-month increase. The lack of awareness and remorse was also noted.
   4. Finally, the revocation of a previous 170-day sentence led to an additional 5-month increase, bringing the total sentence to 25 months. The Federal Supreme Court finds that this calculation respects the discretionary power of the cantonal authority.
2. Regarding the refusal of a suspended sentence:
   1. The Federal Supreme Court confirms the unfavorable prognosis established by the cantonal authority. The numerous prior convictions, systematic recidivism (including during probation periods), impulsive and violent behavior toward strangers, and the total lack of awareness and remorse during the appeal hearing amply justify the refusal to grant a suspended sentence, even a partial one. The appellant's argument regarding alleged "social stabilization" is dismissed as unfounded in light of these factors.
3. Regarding the SIS entry:
   1. The Federal Supreme Court finds that the conditions for the entry are clearly met. The appellant was sentenced to more than two years, which establishes the presumption of a threat to security and public order.
   2. This threat is corroborated by his extensive criminal record and the nature of the offenses committed. The entry is therefore not disproportionate. The appellant's argument, based on the presence of his family in other Schengen area countries, is insufficient to demonstrate a violation of federal or international law, especially since those countries retain the ability to authorize his entry.

Outcome

The Federal Supreme Court dismisses the appeal to the extent that it is admissible. It fully upholds the 25-month custodial sentence, the six-year expulsion, and the entry into the Schengen Information System. The appellant's request for legal aid is denied due to the lack of merit in his appeal, and the court costs (1,200 francs) are charged to him.

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