Facts
The case concerns a complainant who was the sole shareholder, managing director, and sole member of the board of directors of the company "Caropa AG". Caropa AG was founded in 1966 and renamed "Caropa-Treuhand AG" in 1969. The complainant was convicted of preference of creditors under Art. 167 of the Swiss Criminal Code (StGB) and incitement to passport forgery under Art. 252 para. 1 and Art. 24 para. 1 StGB.
In April 1972, shortly before the transfer of Caropa shares to a third party, the complainant had settled his claims against Caropa amounting to over 130,000 Swiss francs by offsetting them against the company's assets. At that time, Caropa was already over-indebted and insolvent, which the complainant is said to have recognized. By preferring his claim to the detriment of other creditors, particularly the regional representatives with the right of return, he became criminally liable for preference of creditors.
Furthermore, the complainant was accused of having instructed a co-defendant from prison to procure forged passports for a planned escape. The passport forgery was committed in Germany, which is why the complainant was only criminally liable in Switzerland under the conditions of Art. 6 para. 1 StGB.
Considerations
Regarding the preference of creditors, the Federal Supreme Court held that a corporation is already insolvent when its assets no longer cover the claims of the company's creditors. Claims that are not yet due but are likely to become due in the near future must also be taken into account. Since Caropa should have made such provisions for the repurchase obligations towards the regional representatives, it was already over-indebted and insolvent in April 1972.
Regarding the passport forgery, the Federal Supreme Court found that the incitement committed in…