Facts

The Superior Court of the Canton of Zurich convicted the appellant (Y.) in a judgment dated 5 May 2000 of aiding and abetting qualified breach of fiduciary duty under Art. 25 in conjunction with Art. 159 para. 1 and 2 SCC (aStGB) to a suspended custodial sentence of 3 months with a probationary period of 2 years. The appellant was the owner of the E. AG, a company he had founded and which was based in SocRA and specialised in the placement of foreign securities in Switzerland. The co-defendants A. and B. worked as deputy director and investment advisor, respectively, at the Alpha Bank (now Gamma Bank) in Zurich.

On 6/7/8 July 1993, the Alpha Bank purchased 500,000 shares in Hanover Gold Corporation from E. AG at prices between USD 3.25 and USD 3.75. Prior to the conclusion of the transaction, the appellant and A. agreed that the appellant would pass on his 10% commission (based on the purchase price of USD 3.25) as well as a difference arising from the fact that a portion of the shares were invoiced at a worse rate than originally offered to A. A. thus received a secret payment of USD 380,000, in which B. was also involved. The lower court considered this conduct to constitute qualified breach of fiduciary duty by A. and B. and aiding and abetting by the appellant.

The appellant filed an appeal in nullity with the Court of Cassation against the judgment of the Superior Court and sought the reversal of the contested judgment.

Considerations

The Federal Supreme Court first examined the prerequisites for breach of fiduciary duty under Art. 159 SCC (aStGB) (in the version then in force), which continued to apply even after the entry into force of Art. 158 SCC on 1 January 1995. The offence of breach of fiduciary duty requires that the offender, in the position of a fiduciary, violates a duty of care to safeguard the principal’s financial interests and thereby causes financial loss. Financial loss exists where the principal’s assets are actually damaged, for example through a reduction in assets, an increase in liabilities CO an economic devaluation requiring a value adjustment CO provision.

A fiduciary within the meaning of this provision is anyone who is responsible for a substantial asset portfolio in an actually CO formally independent and responsible position. This applies to A. as deputy director of the Alpha Bank with extensive decision-making powers. However, the mere violation of the contractual duty to surrender, as occurs in the acceptance of bribes, is not in itself criminal. What is decisive is whether the payment induces the fiduciary to act in a manner contrary to the financial interests of the principal and causes damage.

In the present case, the appellant agreed with A. that the latter would only carry out the transaction if he received a personal payment. This induced A. to prioritise his private interests over those of the Alpha Bank, thereby breaching his duty of…