Facts
The judgment concerns three complainants (K.B., S.G. and R.S.), who, as participants in a large-scale fraud case involving fictitious car leasing contracts, caused the victimised A. Bank total damages of around CHF 12 million. The complainants signed false leasing contracts and handover protocols confirming the acceptance of non-existent vehicles, for which they received commissions of between CHF 1,600 and CHF 1,800.
The complainants were convicted by the single judge of the Winterthur District Court on 24 November 2006 of forgery of documents under Art. 251 para. 1 and 2 SCC and sentenced to conditional custodial sentences. The Higher Court of the Canton of Zurich upheld the convictions in a judgment of 7 March 2008 and imposed conditional fines. The complainants reached a civil settlement with the victim and paid compensation. They filed an appeal against the higher court judgment with the Federal Supreme Court, seeking acquittals or at least exemption from punishment under Art. 53 SCC on the grounds of restitution.
Considerations
The Federal Supreme Court first examined the subjective elements of the offence of false certification under Art. 251 SCC. It confirmed that although the complainants did not know what they were signing, they deliberately chose not to know and thereby accepted the risk of the documents’ contents being untrue, acting with conditional intent. The lower courts relied on indicators such as the severity of the breach of due care, the situational risk of the offence being committed and the complainants’ motives (greed for profit). The Federal Supreme Court held that deliberate ignorance of the facts does not constitute a mistake of fact (Art. 13 SCC) but rather indicates conditional intent. The subjective elements of the offence of false certification were thus fulfilled.
The Federal Supreme Court then examined the conditions for exemption from punishment under Art. 53 SCC. The complainants had fully compensated the victim, who stated that she had no interest in prosecution. The Federal Supreme Court emphasised that while restitution primarily serves the victim, the public interest in prosecution must also be taken into account. In the case of document offences such as false certification, criminal law protects not only individual property interests but also public confidence in the reliability of documents as evidence. Therefore, the public interest in prosecution remains even after restitution if the offence undermines confidence in legal transactions.
The Federal Supreme Court stated that the public interest in prosecution in the case of offences against public interests (such as document offences) does not automatically cease to exist with restitution. Rather, a balancing exercise must be carried out between the purposes of punishment (retribution, prevention) and the extent of…