Successful criminal defence leads to landmark decision of Swiss Federal Supreme Court

Nater Dallafior successfully represented a defendant who had been charged with abuse of social welfare and sentenced to a 5-year ban from the country by the District Court of Zurich. While the Court of Appeal of Zurich upheld this decision, the Swiss Federal Supreme Court ruled that an expulsion from the country was not justified.

Since 1 October 2016, foreigners are threatened with mandatory expulsion for 5 to 15 years if they commit certain crimes such as claiming social welfare benefits without entitlement. Only in "minor cases" the penalty is a fine (see art. 66a and art. 148a Swiss Criminal Code). In its decision of 27 April 2023, the Swiss Federal Supreme Court outlined the criteria for assessing minor cases which do not justify expulsion as follows: (a) If the amount of the offence is less than CHF 3'000, it is always a minor case; (b) if the offence exceeds CHF 36'000, it is usually not a minor case; and (c) in the intermediate range, it must be examined in each individual case whether a minor case still exists.

In the present case, the defendant kept the withdrawal of his pension fund in the amount of CHF 18'400 secret. The Swiss Federal Supreme Court held that the defendant had to anticipate that the withdrawal will not remain unnoticed and that he disclosed all documents upon request of the social welfare office. Therefore, the Court ruled that the defendant is guilty of a minor case which does not justify expulsion.

The client was represented by Patrik Salzmann.

For further information see: https://www.bger.ch/files/live/sites/bger/files/pdf/de/6b_1108_2021_2023_06_01_T_d_11_20_37.pdf