Facts
Parties: Appellant [X.] against the Federal Prosecutor.
Facts: From 1998 to 2004, [X.] operated an investment system that allegedly generated market-superior, risk-free, and high returns. Investors were invested in various investment vehicles through the [C.] Group. [X.] is accused of the system being a fraudulent sham, where the funds were not invested but used for return payments and business costs. Approximately 2000 investors were defrauded of at least CHF 800 million.
Proceedings: The Federal Criminal Court sentenced [X.] to 5 years and 6 months imprisonment, confiscation of assets, and a restitution claim of CHF 100 million. [X.] filed an appeal, inter alia, for violation of the principle of accusation and the right to be heard.
Considerations
The appellant complains that the indictment contains around 700 footnotes referring to approximately 5000 documents with a total volume of around 100,000 pages. This leads to an endless task and makes the charges incomprehensible, thereby violating the delimitation function of the indictment. Furthermore, the indictment is not sufficiently concrete and does not consider the different victim categories.
The lower court assumes that the principle of accusation is not affected by the references to the files in the indictment. Although, under the current law, in contrast to Art. 126 para. 1 no. 4 aBStP (AS 50 685), the evidence no longer needs to be designated in the indictment (cf. Art. 325 para. 1 CrimPC), the law does not exclude this either. By designating the evidence with reference to the relevant file references, the court is not influenced in a one-sided manner before the main hearing. The court is certainly able to recognize the limited function of the file references as a tool for preparing the main hearing and to independently assess the evidence in the main hearing.
According to the principle of accusation set out in Art. 9 para. 1 CrimPC, the indictment determines the subject matter of the court proceedings (delimitation function; cf. also Art. 29 para. 2 and Art. 32 para. 2 Cst.; Art. 6 para. 1 and 3 lit. a and b ECHR). The accusation must describe the offenses attributed to the accused person in such a precise manner that the allegations are sufficiently concretized in objective and subjective terms. At the same time, the principle of accusation aims to protect the defense rights of the accused person and guarantees the right to be heard (information function; BGE 143 IV 63 E. 2.2; 141 IV 132 E. 3.4.1; 140 IV 188 E. 1.3; each with references). The accused must be able to see from the indictment what is specifically being alleged against them, so that they can exercise their defense rights appropriately. This requires a sufficient, i.e., as short as possible but accurate (Art. 325 para. 1 lit. f CrimPC) description of the factual elements required for a subsumption under the applicable criminal provisions. The decisive factor is that the affected person knows exactly which specific actions they are accused of and how their behavior is legally qualified, so that they can prepare their defense accordingly (BGE 143 IV 63 E. 2.2). Imprecision is not of decisive importance as long as there is no doubt for the accused person as to which behavior is being imputed to them (judgments 6B_760/2017 of March 23, 2018 E. 1.3; 6B_684/2017 of March 13, 2018 E. 2; each with references).
In the present case, the indictment, with a length of 84 pages, details the accusation against the appellant of commercial investment fraud from September 1998 to the end of October 2004 in connection with the "[X.] trading system" and the distribution of the investment concept in the context of the "[C.] Group". It elaborates in detail how the appellant deceived the approximately 2000 victims with a uniformly identical approach aimed at the potential investor base, claiming that their deposits were actually invested in the individually named investment vehicles/financial products and managed according to his computer-controlled trading system. He falsely informed investors that the investment concept was handled in a serious, trustworthy, proven, and largely risk-free manner with above-average returns. In reality, the investments - with the exception of the investments designed as "managed accounts" - were not invested and managed but were used to fulfill other obligations, particularly to "plug holes". In truth, the "[X.] trading system" was a virtual sham operated on a pay-as-you-go basis (indictment p. 2 ff.). The indictment further explains the framework and form in which the appellant made false statements to interested investors and from which external circumstances the element of fraud arises. Finally, there are explanations regarding the mistake, the disposal of assets, and the damage to assets as well as the material identity and the commercial nature (indictment p. 55 ff.). Furthermore, the indictment describes the accusations raised in connection with the indictment for qualified money laundering (indictment p. 76 ff.).
The indictment is not objectionable in view of the complex situation. It fully meets the requirements arising from the delimitation and information functions. The factual basis underlying the indictment is described concretely and in detail and clearly outlined. The appellant could clearly see which accusations were made against him, so that he was able to exercise his defense rights appropriately. This is not changed by what the appellant argues against the footnotes contained in the indictment. It is true that the prosecuting authority substantiates the described factual basis in around 700 footnotes with numerous references to the investigation files. This applies in particular in connection with the description of the numerous similarly standardized presentations of his trading system held by the appellant in person in Switzerland and abroad, as well as the written statements made in various distribution and sales documents (indictment p. 8 ff.). Contrary to the appellant's opinion, this does not violate the principle of accusation. As the lower court correctly considers (appealed judgment p. 13 f.), the footnotes in the indictment contain references to the…