Facts
Parties and instances: The Slovak national S. [G.] was convicted by the Criminal Court of the Canton of Basel-Landschaft of aiding and abetting embezzlement to a suspended prison sentence of 12 months. Her husband, a Swiss national, was convicted as the principal offender of embezzlement. The X. insurance company, which had filed a claim for damages of CHF 160,000.-- with the couple, participated as an adhesion plaintiff. S. [G.] appealed against the judgment, which was dismissed by the Higher Court of Basel-Landschaft. She then filed a federal nullity appeal with the Federal Supreme Court.
Facts of the case: On 8 May 1993, the complainant’s husband, D. [G.], rented a vehicle (Mercedes 600 SEL) worth approximately CHF 200,000.-- from the Swiss car rental company [B. AG] in Basel-Landschaft. The vehicle was later sold in Bratislava (Slovakia). The cantonal courts qualified the husband’s conduct as embezzlement and the complainant’s conduct as aiding and abetting. The complainant argued that the offence should be classified as an extraterritorial offence committed by a foreign national and that Swiss jurisdiction under Art. 5 para. 1 SCC was not established. She further argued that Art. 5 SCC does not apply to legal entities.
Considerations
Applicability of Art. 5 para. 1 SCC to legal entities: The Federal Supreme Court confirmed that the term “Swiss” in Art. 5 para. 1 SCC also includes legal entities. Although this question is disputed in the literature, there is a tendency in case law towards equal treatment. In the present case, equal treatment was justified since the organisational form of the lessor (sole proprietorship or legal entity) is irrelevant for protection under Art. 5 SCC. The car rental company [B. AG] was therefore to be regarded as a “Swiss” within the meaning of the provision.
Subsidiarity of Swiss jurisdiction: Art. 5 SCC has a subsidiary character. In principle, Swiss jurisdiction is only to be affirmed if the state where the offence was committed waives prosecution or if the offender cannot be extradited to that state. This serves procedural efficiency and respect for the sovereignty of the state where the offence was committed. An inquiry with the state where the offence was committed is therefore required to avoid double punishment or conflicts with international law.
Exception to the principle of prior inquiry: An exception to the obligation to make an inquiry with the state where the offence was committed may, however, be justified if there are concrete indications that the offender will not receive a fair trial in that state. In the present case, such an exception was justified since the offence had close ties to Switzerland: the vehicle was rented…