Facts
The appellant was convicted by the Cantonal Court of St. Gallen of qualified embezzlement after he had accepted money from clients for the brokerage of bank guarantees that later turned out to be forgeries. The clients had transferred the money due to deception about the nature of the business.
The Cantonal Court assumed that the money had been entrusted to the appellant, as he had administered it in a fiduciary capacity. However, the appellant claimed that the money had not been entrusted to him, as it had been accepted as consideration for the contractually promised performance.
Considerations
The Court of Cassation examined whether the money had been entrusted to the appellant within the meaning of the embezzlement offense. It found that the money had flowed in as brokerage fees and not as an investment in a specific project. The appellant was not contractually obliged to invest the money in a specific project, but had accepted it as consideration for the efforts he had pretended to make.
The Court of Cassation concluded that the money had not been…