Confiscation of seized assets in case of embezzlement to the detriment of bank customers

Facts

The Superior Court of the Canton of Zurich convicted several defendants by judgment of 5 May 2000 of various criminal offences, including qualified embezzlement, money laundering, suppression of documents and breach of fiduciary duties. The acts involved manipulated securities transactions in which customers of the Beta Bank (now Delta Bank) and the Alpha Bank (now Gamma Bank) were harmed. The respondents had unlawfully appropriated assets through price manipulation and diverting differential amounts.

The Superior Court acquitted the defendants on the counts of qualified embezzlement to the detriment of the banks, as the victims were primarily the bank customers. It confiscated seized assets in favour of the state and referred the banks' compensation claims to the civil courts. The Delta Bank and the Gamma Bank filed federal nullity appeals against these decisions.

Considerations

1. Admissibility of the nullity appeals The appellants are entitled to file the nullity appeal as legal successors of the aggrieved banks, having participated in the criminal proceedings and asserted their civil claims in an adhesion procedure. They claim to have been directly harmed by the acts, which the Federal Court considers sufficient for standing to appeal (cf. BGE 122 II 211 E. 3c).

2. Qualified embezzlement to the detriment of the banks The lower court considered the victims to be primarily the bank customers, as the assets economically belonged to them. The Federal Court confirms this view: although the banks held the customer funds and securities as legal owners, economically they were held in trust. The offenders unlawfully appropriated differential amounts derived from the customer assets. Embezzlement to the detriment of the banks is therefore excluded, as the banks were not themselves harmed but only indirectly through their obligation to reimburse the customers.

3. Confiscation of seized assets The lower court confiscated the seized assets in favour of the state, as they could not be directly assigned to the banks. The Federal Court confirms this: Art. 59 para. 1 no. 1 SCC provides for direct assignment only if…