Facts
The case concerns X., a former tennis instructor turned wealth manager, and Y., the holder of the asset management company Z. Finance. Between late 1987 and May 1990, X. induced several clients to entrust funds to Z. Finance, totaling 1.9 million francs (1.6 million after deductions). These funds, deposited in a single account, were used for speculative transactions on options and “futures” markets, despite the clients’ restrictive instructions. X., who was aware of the contract terms, placed massive speculative orders between April and May 1990, resulting in losses of 800,000 francs. Y. withdrew 500,000 francs for personal use and 200,000 francs in management fees and expenses, thereby dissipating the entirety of the clients’ assets.
The Criminal Court with jury of the Canton of Geneva convicted Y. of aggravated breach of trust (undue withdrawal of 500,000 francs) and gross mismanagement (losses of 800,000 francs due to speculative transactions contrary to the clients’ interests and instructions). X. was found guilty of aiding and abetting gross mismanagement, the court finding that he was not a mere employee but an active partner, aware of the risks involved and acting knowingly. X. benefited from a reduction in sentence for having acted under Y.’s influence and was sentenced to 4 months’ suspended imprisonment. Y. received a default sentence of 24 months’ imprisonment.
The Court of Cassation of the Canton of Geneva dismissed X.’s appeal against this conviction. X. then filed a nullity appeal with the Federal Supreme Court, contesting his conviction for aiding and abetting gross mismanagement through eventual intent, arguing a violation of federal law.
Considerations
The Federal Supreme Court examined whether the conditions for gross mismanagement (Art. 159 para. 1 SCC) were met for the principal offender (Y.) and whether X. could be held liable as an accomplice to this offense. Art. 159 para. 1 SCC requires four cumulative elements: (1) a managerial position, (2) a breach of an obligation related to such management, (3) harm resulting from such breach, and (4) criminal intent (including eventual intent).
In the present case, the cantonal court found that Y., as a wealth manager, had sufficient autonomy to manage client funds, satisfying the managerial position requirement. The massive speculative transactions contrary to client instructions constituted a breach of his duty of care and management, resulting in proven harm (total loss of funds). Regarding intent, the court found that Y. had acted with eventual intent: he was aware of the risks of the speculative transactions and accepted their possible realization, including the losses.
As for X., the issue was his complicity (Art. 25 SCC) in the gross mismanagement. The cantonal court held that X., although not a mere employee, held a position as an active partner, participating in speculative decisions and sharing awareness of the…