Facts
The Higher Court of the Canton of Solothurn convicted by judgment of 8 July 2008 in the second instance the respondent 1 (X.) of multiple forgery of documents in an official capacity (Art. 317 SCC) and of incitement to forgery of documents (Art. 251 SCC) and acquitted him of the charge of obtaining false certification. A conviction was entered against respondent 2 (Y.) for forgery of documents (Art. 251 SCC), while acquittals were entered on other charges. Both respondents were exempted from punishment, with respondent 2 being awarded compensation of 2,000 CHF.
The Public Prosecutor’s Office of the Canton of Solothurn filed an appeal with the Federal Supreme Court on 6 March 2009 seeking the quashing of the contested judgment and the imposition of proportionate punishments on both respondents. The respondents and the Higher Court of Solothurn requested dismissal of the appeal. The Federal Supreme Court dismissed the appeal insofar as it was admissible.
Considerations
The Federal Supreme Court examined the application of Art. 52 SCC by the lower court, under which punishment may be waived if culpability and consequences are minor. The appellant argued that the respondents’ acts did not constitute trivial offences, in particular due to the violation of public trust in the integrity of notaries and auditors and the selfish motives of respondent 1. Moreover, the culpability was not minor, as respondent 1 had instigated a fiduciary to conceal his forgery.
The lower court, however, assessed the culpability of both respondents as light or rather light. In the case of respondent 1, the false certifications in connection with the formation of a new AG were deemed not to be serious in objective terms, as neither material damage nor personal gain had resulted. In the case of respondent 2, although the backdating of an audit confirmation was recognised as a criminal act, it was considered rather minor in comparison with typical cases of forgery of documents. Both respondents had an unblemished reputation, and the long duration of the proceedings (over 12 years) and the associated professional and personal consequences were taken into account as mitigating factors.
The Federal Supreme Court confirmed that the lower court enjoys considerable discretion in applying Art. 52 SCC, which is only reviewed in the event of obvious errors or abuse. The lower court had correctly applied the conditions for waiving punishment: minor culpability and consequences were to be assessed cumulatively, with factors such as the offenders’ professional position, personal circumstances and post-offence conduct also being taken into account. The increased penal sensitivity of the respondents – in particular the risk of deletion from the bar register for respondent 1 (Art. 366 para. 2 lit. b SCC in conjunction with Art. 8 para. 1 lit. b FMLA) – was considered as an…