Facts
The [X.] Bank (appellant) appealed the decision of the Higher Court of the Canton of Zurich dated 3 July 2007, by which the release of two accounts (each with a balance of Euro 100,000.--) was ordered. The accounts had been seized in the context of criminal proceedings against [A.] (accused), who was convicted of commercial fraud, multiple embezzlement and forgery.
The accused, as Deputy Director of the Bank, had embezzled customer assets by arranging unlawful transfers in his favour. To settle his debts to the victims [B.] and [C.] , he debited two unrelated customer accounts of the Bank with Euro 100,000.-- each and transferred the amounts to the trust company [E.] . The seized balances were still held in the accounts of [E.] .
The District Court of Zurich sentenced the accused to three years' imprisonment and ordered the confiscation of the seized assets in favour of the Bank. The Higher Court of Zurich lifted the account freeze and released the balances, assuming protected third-party acquisition by [E.] . The Bank alleged a violation of Art. 59 para. 1 SCC (confiscation of criminally acquired assets) and demanded direct restitution of the balances to itself as the victim.
Considerations
1. Appellant standing of the Bank The Federal Supreme Court first examined whether the Bank, as a victim, had a legally protected interest in the annulment of the contested decision. Although the Bank is not considered a victim within the meaning of Art. 2 SCC, Art. 59 para. 1 subpara. 1 SCC and Art. 60 SCC grant victims a right to direct restitution CO assignment of confiscated assets. The Bank argued that it had been indirectly harmed by the fraudulent acts of its employee, as it had to compensate the harmed bank customers. The Federal Supreme Court affirmed a legally protected interest, since the Bank claimed direct restitution of the criminally acquired assets.
2. Applicability of Art. 59 para. 1 SCC (confiscation) The confiscation of criminally acquired assets serves to offset criminal gains and prevent criminal conduct from being profitable for the offender. The seized balances stem from the accused's fraudulent transfers and constitute unauthentic surrogates of the embezzled customer funds. The Bank, however, is not considered an injured party within the meaning of Art. 59 para. 1 subpara. 1 SCC, as it was only indirectly harmed. The injured parties are the bank customers whose accounts were unlawfully debited. A direct restitution claim by the Bank is therefore excluded.
3. Protected third-party acquisition (Art. 59 para. 1 subpara. 2 SCC) The lower court assumed that [E.] had received the balances as a third-party acquirer in good faith and in exchange for equivalent consideration. The Federal Supreme Court disagreed with this view: [E.] was not entitled to receive the funds, and there was no synallagmatic legal transaction between it and the accused. The mere obligation to invest the funds does not constitute adequate consideration. Moreover, [E.] …