Facts
The appellant K. was convicted by the Court of Appeal of St. Gallen on 10 January 1990 in appellate proceedings for repeated and continued failure to maintain accounting records (Art. 166 SCC) and repeated and continued improper maintenance of business records (Art. 325 SCC) to two months’ suspended imprisonment. K. filed a federal nullity appeal against this judgment, seeking either acquittal from the charge of failure to maintain accounting records or remittal of the matter to the lower court for reassessment.
The appellant argued that the failure to maintain accounting records was not due to an intent to conceal but rather to financial difficulties. After the lessor repossessed the IT system, he lacked the means to continue bookkeeping or pay for a replacement for the dismissed accountant. Moreover, third parties could have obtained information about the companies’ financial positions through official channels such as the debt collection office or external firms.
Considerations
The Federal Court first examined whether the subjective elements of Art. 166 SCC were satisfied. The appellant denied that an intent to conceal could be proven against him and relied on financial constraints as the reason for failing to maintain accounting records.
The Court clarified that a conviction under Art. 166 SCC requires intent, though conditional intent suffices. This means the offender must be aware of their duty to maintain accounting records and accept the possible consequences—particularly the concealment of the financial situation. A specific intent to conceal as a final objective is not required; it is sufficient that the offender knowingly accepts…