Facts
The Swiss Casino Supervisory Authority (SCSA) initiated proceedings against six individuals ([A.] , [B.] , [C.] , [D.] , [E.] and [F.] ) on suspicion of violations of the Casino Act (CA). Investigations began in 2011 and led to house searches in 2013 and 2014. On 4 March 2020, the District Court of Olten-Gösgen convicted three of the accused ([A.] , [C.] and [E.] ) of operating illegal gaming machines and sentenced them to fines. [B.] was also convicted of an offence under the CA, while [D.] and [F.] were acquitted.
The Higher Court of the Canton of Solothurn upheld the convictions and acquittals of the lower court with a judgment of 29 November 2021, but reduced the penalties and compensation claims for [A.] , [C.] and [E.] . [B.] , [D.] and [F.] were again acquitted.
The SCSA, [A.] , [C.] and [E.] appealed this judgment to the Federal Supreme Court. Among other things, the appellants alleged a violation of the prosecution principle, the unlawfulness of the house searches, the admissibility of evidence and the level of penalties and compensation claims. The proceedings were consolidated by the Federal Supreme Court for a single decision.
Considerations
1. Prosecution principle and sufficient grounds for suspicion:
The Federal Supreme Court confirmed that the prosecution had sufficiently precisely informed the accused of the acts alleged against them. The referral by the SCSA dated 9 October 2017 contained a detailed description of the allegations, in particular the operation of illegal gaming machines between 2011 and 2015. The appellants [A.] and [C.] could not claim that they had not been sufficiently informed of the allegations. Furthermore, the attribution of co-perpetration was deemed permissible, as the prosecution sufficiently demonstrated the co-perpetrator collaboration.
2. Lawfulness of house searches and admissibility of evidence:
The appeal of [B.] against the house searches in 2013 and 2014 was dismissed. The Federal Supreme Court found that the house searches were based on sufficient grounds for suspicion, which arose from several anonymous and non-anonymous tips as well as police observations. The substantive quality of the anonymous reports was sufficient to establish sufficient grounds for suspicion. The evidence seized during the house searches was therefore admissible. The appellant’s argument that his conviction was based exclusively on anonymous tips was also rejected. The lower court relied on substantive evidence such as USB sticks, notebooks and the appellant’s statements.
3. Arbitrary establishment of facts:
The appellants alleged that the lower court had arbitrarily established the facts. The Federal Supreme Court dismissed these complaints, as the lower court based its findings on a comprehensive assessment of the evidence. For example, the finding that [C.] acted as the exclusive provider of the gaming platform [G.] was supported by numerous pieces of evidence such as technical reports, emails and witness statements. The finding that [B.] had manipulated the software to obstruct criminal prosecution was also substantiated by technical analyses and evaluations of data carriers.
4. Criminal liability under the Casino Act (CA) and lex mitior:
The Federal Supreme Court confirmed that the acts of the appellants were to be assessed under the CA and not under the new Gambling Act (GamblA). The qualification as a game of chance required a decision by the SCSA…