Facts

The single-family house on parcel No. x in Meggen was included in the municipal inventory of protected cultural objects of the Municipality of Meggen on 15 May 2003. The simple partnership C., consisting of the public limited company A.Y., X., B.Y. and Z., exercised its pre-emption right acquired in 2006 over the property on 19 December 2007. On 22 January 2008, X. had the civil protection siren on the roof of the single-family house removed and the building demolished without properly notifying the Municipality.

The then District Governor's Office of Lucerne convicted X. on 9 February 2010 of criminal damage and of violating § 213 para. 1 and 2 in conjunction with § 187 of the Planning and Building Act of the Canton of Lucerne (PTA/LU) to a suspended fine of 20 daily rates of CHF 100, a fine of CHF 30,000 and to a substitute claim of CHF 596,850. At the same time, it ordered the public limited company A.Y., B.Y. and Z. to pay substitute claims to the State amounting to CHF 1,241,448, CHF 358,110 and CHF 190,992 respectively. The criminal investigations against them for violating the PTA/LU were discontinued.

X. filed an objection, while the public limited company A.Y., B.Y. and Z. appealed against the confiscation order to the Higher Court of the Canton of Lucerne. The Higher Court did not enter into the matter and referred the case to the District Court of Lucerne-Country for adjudication together with the criminal case. The District Court of Kriens convicted X. on 2 July 2012 of criminal damage and sentenced him to a suspended fine of 20 daily rates of CHF 100 and a substitute claim of CHF 132,500. The criminal proceedings against X. for violating § 187 para. 1 in conjunction with § 213 para. 2 PTA/LU were discontinued due to statute of limitations. The confiscation proceedings against the public limited company A.Y., B.Y. and Z. were also discontinued. The civil claim of the Municipality of Meggen was referred to the civil courts and the land register restriction on parcel No. x in Meggen was lifted.

X. and the Public Prosecutor's Office appealed against this decision. The Court of Appeal of the Canton of Lucerne convicted X. on 22 May 2014 of criminal damage (Art. 144 para. 1 SCC) and of violating § 187 para. 1 in conjunction with § 213 para. 1 and 2 PTA/LU to a suspended fine of 20 daily rates of CHF 100 and a fine of CHF 30,000. It ordered him and the public limited company A.Y., B.Y. and Z. to pay substitute claims to the State amounting to CHF 132,500, CHF 275,600, CHF 79,500 and CHF 42,400 respectively and maintained the land register restriction.

X. filed an appeal against this decision with a request for acquittal and for the lifting of the land register restriction. In the alternative, he requested that the case be remitted for re-examination and that an expert opinion be ordered.

Considerations

The Federal Supreme Court first examined the statute of limitations for confiscation and the substitute claim. The appellant argued that the penal order of the District Governor's Office of 9 February 2010 was not a first-instance judgment within the meaning of Art. 97 para. 3 SCC, as it had been issued in gross violation of his right to be heard. Moreover, the violation of the PTA/LU was a petty offence for which, according to Art. 109 SCC, a three-year statute of limitations applied. The Federal Supreme Court, however, found that the penal order had been issued on the basis of comprehensive evidence and in a contradictory procedure and was therefore to be qualified as a first-instance judgment within the meaning of Art. 97 para. 3 SCC. Since it had been issued before the expiry of the three-year period, prosecution was no longer time-barred. Furthermore, the three-year limitation period under Art. 70 para. 3 SCC also applied to the confiscation of assets obtained through petty offences, even if the offence itself had already become time-barred. The lower court had therefore not arbitrarily denied the statute of limitations for the substitute claim.

The focus of the decision was on the calculation of the substitute claim under Art. 71 SCC. The appellant complained that the lower court had not included the demolition costs and the value of the demolished building in the calculation of the increase in value. The Federal Supreme Court, however, confirmed the case law according to which the gross principle must be applied when calculating the substitute claim, provided that the offence is generally prohibited. This was particularly the case where the offender committed the offence with the intention of making a profit. The lower court had therefore correctly refused to deduct the demolition costs and the value of the destroyed building, as this…