Facts
The case concerns a notary and attorney named S., who participated as the secretary at an extraordinary general meeting of P. AG. S. recorded that all shares were represented and that there were no objections to holding a universal meeting. In fact, not all shares were represented. Following this meeting, S. was involved in the transmission of a commercial register registration, according to which W. was to be registered instead of the previous Board of Directors B.
The Economic Criminal Court of the Canton of Bern acquitted S. of the charges of forgery of documents and procurement of a false certification. The Public Prosecutor's Office of the Canton of Bern subsequently filed a federal nullity appeal.
Considerations
The Federal Court states that the minutes of a universal meeting, at which a new election of the Board of Directors takes place, have the character of a document, insofar as they form the basis for an entry in the commercial register. The secretary is in a position of trust vis-à-vis the commercial register authority and has the duty to prepare the minutes truthfully.
Although the finding that all shares were represented was objectively correct, S. accepted that this might not be the case. This made him guilty of the attempted offense of forgery of documents under Art. 251 No. 1 of the Swiss Criminal Code, provided that in addition to the conditional intent,…