No violation of the prohibition of reformatio in peius when reclassifying aiding and abetting of fraud as principal perpetration of active private bribery

Facts

Parties and instances:

The Office of the Attorney General of the Canton of Zurich (appellant) appealed against the judgments of the District Court of Bülach (first-instance judgment of 15 July 2014) and the High Court of the Canton of Zurich (second-instance judgment of 28 January 2016). The respondents were X. (respondent 1), Y. (respondent 2) and Z. (respondent 3).

Facts of the case:

The respondents were convicted in the first instance of various offences, including fraud (Art. 146 para. 1 SCC) and aiding and abetting fraud (Art. 146 para. 1 SCC in conjunction with Art. 25 SCC). The District Court of Bülach sentenced X. to a custodial sentence of 34 months (partially suspended) and [Y.] and [Z.] to fines. The Zurich High Court found X. guilty in the second instance of passive private bribery (Art. 4a para. 1 lit. b UCA in conjunction with Art. 23 UCA) and acquitted [Y.] and Z. The Office of the Attorney General requested in its appeal that [Y.] and [Z.] be convicted of active private bribery (Art. 4a para. 1 lit. a UCA in conjunction with Art. 23 UCA).

Main issue: The appellant argued that the Zurich High Court had violated the prohibition of reformatio in peius (Art. 391 para. 2 CrimPC) by acquitting [Y.] and [Z.] of the charge of active private bribery on the grounds that a conviction as a principal would constitute an impermissible worsening compared to the first-instance conviction as an accomplice to fraud.

Considerations

1. Examination of the prohibition of reformatio in peius The court examined whether the reclassification of the acts of respondents 2 and 3 from aiding and abetting fraud (felony) to principal perpetration of active private bribery (misdemeanour) constituted an impermissible worsening within the meaning of Art. 391 para. 2 CrimPC. The prohibition of reformatio in peius prohibits a decision that is more disadvantageous for the respondent in appellate proceedings, provided that only the appellant has lodged an appeal.

2. Distinction between felony and misdemeanour The court referred to the definition in Art. 10 SCC: felonies are acts punishable by imprisonment of more than three years, while misdemeanours are punishable by imprisonment of up to three years or a fine. Fraud (Art. 146 SCC) is a felony, whereas active private bribery (Art. 4a UCA) is a misdemeanour. Aiding and abetting a felony remains a felony despite mitigation of punishment and is therefore more serious than a misdemeanour committed as a principal.

3. No impermissible worsening The court clarified that a conviction as a principal of active private bribery does not constitute a worsening compared to the first-instance conviction as an accomplice to fraud. Although principal perpetration is more serious than…