Abuse of Cheque Cards and Credit Cards

Facts

By a judgment of November 20, 1998, the District Criminal Court of Lausanne convicted Y., born Z., of breach of trust, fraud, and qualified abuse of cheque cards and credit cards, to a sentence of four years of imprisonment. His wife, Mrs. Y., was acquitted of the charge of qualified abuse of cheque cards and credit cards, due to lack of intent.

Y. appealed against this decision to the Federal Tribunal. The Federal Tribunal upheld the appeal to the extent that it was admissible, annulled the contested decision, and remanded the case to the cantonal authority for a new decision.

Considerations

Article 148 of the Swiss Criminal Code (SCC) punishes the abuse of cheque cards and credit cards. This provision requires that "the issuing body and the contracting company have taken the measures that could be expected of them to prevent the abuse of the card". This is an objective condition of punishability, on which the intent of the perpetrator does not need to be based.

Regarding the "Credicard Gold" card of Credit Suisse, the Federal Tribunal considered that the issuing body had not taken the appropriate measures before issuing the card, in particular by not verifying the creditworthiness of the applicant. Consequently, the objective condition of punishability was not met and Y. cannot be found guilty of the offense punished by Article 148 SCC.

For the Visa Corner Bank card, the Federal Tribunal also considered that the measures taken by the issuing body were…