Conviction for inciting a public official to commit forgery of a document

Facts

The case concerns Novic, who was sentenced to 10 months' imprisonment by the Court of Appeal of the Canton of Basel-Stadt in May 1948. To avoid serving his sentence, he fled abroad. As he was therefore wanted by the Swiss police, he could not have his expired Swiss passport extended in the ordinary way. In late summer 1950, Novic persuaded the former employee of the Basel Control Office, Buser, to have a Control Office official secretly extend the passport. Buser agreed and instructed the registrar of the Control Office, Frei, to make the extension endorsement in Novic's expired passport, which Frei did on 17 September 1950. Novic was extradited from France to the Swiss authorities in August 1952 and conditionally released from prison on 18 February 1953.

On 25 January 1955, the Criminal Court of the Canton of Basel-Stadt convicted Frei of forgery of a document and complicity, Buser of inciting a public official to commit forgery of a document and of complicity, and Novic of inciting a public official to commit forgery of a document. The Court of Appeal of the Canton of Basel-Stadt confirmed this judgment on 8 July 1955.

Buser and Novic filed a nullity appeal to the Federal Supreme Court and requested the annulment of the judgment and their acquittal, or alternatively, their conviction for incitement to forge an identity document.

Considerations

The Federal Supreme Court dismissed the nullity appeals. It held that Frei, as a public official, had committed forgery of a document under Art. 317 of the Swiss Criminal Code (SCC) by affixing the stamps for the passport extension, and that Buser was criminally liable for inciting him to do so.

Art. 317 SCC, as a special provision, takes precedence over the general provisions on forgery of documents under Art. 251 et seq. SCC. The decisive factor is not the type of forged document, but that the public official committed the forgery in breach of his official duties. The applicability of Art. 317 SCC does not require that the document be one whose production or alteration normally falls within the perpetrator's area of responsibility.

Even the non-qualified instigator, i.e., Buser, is punishable under Art. 317 SCC, as the…