Facts
The appellant was convicted by the District Court of Baden on 11 February 2020 of multiple offences against property, bankruptcy law, and documents. He was acquitted on some counts and found guilty on others, sentenced to a custodial sentence of 28 months (partially as an additional penalty to a prior judgment of 6 August 2013), and ordered to pay a replacement claim of CHF 500,000.--. In addition, it ordered the confiscation and use of seized assets to cover procedural costs and the replacement claim.
Both the appellant and a private claimant appealed against this judgment. The Higher Court of the Canton of Aargau upheld, in a judgment of 18 October 2021, the acquittals in part and the convictions in part, confirmed the custodial sentence of 28 months as a partial additional penalty, and also ordered a replacement claim of CHF 500,000.--. It ordered that seized assets and proceeds from realisations be used to cover procedural costs and the replacement claim.
The appellant lodged an appeal in criminal matters against the appellate judgment and seeks a reduction of the custodial sentence to 16 months (partially suspended) and the complete waiver of the replacement claim. In the alternative, he requests that the matter be remitted to the lower court for reassessment.
Considerations
The Federal Supreme Court first examines the formal requirements for the appeal grounds pursuant to Art. 42 para. 2 FSCA. It finds that the appellant’s grounds are insufficient as they merely refer to previous files without any independent examination of the legal and factual issues. Therefore, it does not enter into the complaint regarding sentencing.
On the merits, the Federal Supreme Court examines the formation of the additional penalty pursuant to Art. 49 para. 2 SCC. It confirms the case law according to which the lower court, when forming the hypothetical aggregate sentence, must comply with the upper and lower limits of the respective type of penalty but is not bound by the sentencing range of the most serious offence. The lower court correctly formed the individual sentences for the newly assessed offences and calculated the hypothetical aggregate sentence in accordance with the cumulation principle pursuant to Art. 49 para. 1 SCC. The appellant’s complaint that the lower court exceeded the sentencing range is dismissed as unfounded, as the formation of the aggregate sentence of 74 months is methodologically correct and comprehensible. Moreover, the lower court correctly applied the grounds for mitigation of punishment pursuant to Art. 48 lit. e SCC and the prohibition of reformation in peius pursuant to Art. 391 para. 2 CrimPC.
The appellant’s complaint regarding the partially suspended execution of the sentence is also dismissed as insufficiently substantiated, as he does not address the Federal Supreme Court’s case law according to which the hypothetical aggregate sentence, and not the additional penalty, is decisive for the question of suspended execution.
Finally, the Federal Supreme Court turns to the replacement claim pursuant to Art. 70 and 71 SCC. It confirms that the…