Facts
In this case, the DFC was seized of an appeal for nullity filed by X. against a judgment of the Cantonal Court of Zurich finding him guilty of unlawful use of assets within the meaning of Art. 141bis of the Swiss Criminal Code (SCC).
According to the findings of fact of the previous court, the bank A. Ltd. in Trinidad and Tobago made two transfers of USD 49,985.- and USD 100,095.- to bank [B. AG] in Zurich in the autumn/winter of 2001/2002, with instructions to credit them to the account of "X., 188". The employees of bank [B. AG] were unable to allocate these payments to a customer account, and they searched for a customer with that name and discovered the appellant, who had an account whose number contained the digits 188. An employee then contacted the appellant by telephone in both cases to ask him if he was expecting a large amount, which he falsely confirmed. Subsequently, a total of CHF 243,741.20 was credited to the appellant's account. In reality, these transfers were intended for an employee of the bank with the same name, for the account of one of his clients. Bank [B. AG] only discovered the error when this employee noticed the shortfall, and was only able to recover CHF 54,022.60 from the appellant's account, as he had withdrawn the majority of the funds for his personal needs.
Considerations
According to the DFC, the offence of unlawful use of assets under Art. 141bis SCC applies exclusively to cases where the assets have come into the possession of the accused independently of his will, as in the case of…