Facts

The District Court of Meilen convicted on 4 July 2016 the respondent X. of multiple murder (Art. 112 SCC) of his parents to a custodial sentence of 20 years and ordered a therapeutic measure under Art. 59 SCC. It also ordered the confiscation of claims of the respondent against the private plaintiffs 1-3 (siblings of the deceased) for payment of CHF 100,000.- as well as the transfer of a condominium in Zurich.

The Higher Court of the Canton of Zurich confirmed on 15 May 2017 the conviction and the custodial sentence. Regarding the assets, it decided that the claim for CHF 100,000.- and the claim for transfer of the property were to be used for cost coverage; any surplus was to be returned to the respondent.

The Office of the Attorney General of the Canton of Zurich filed an appeal in criminal matters seeking the reversal of this decision and the confiscation of the assets in favour of the Canton of Zurich. In the alternative, it requested a referral back to the lower court.

The Federal Supreme Court dismissed the appeal insofar as it was admissible.

Considerations

The Federal Supreme Court examined whether the assets of the respondent were to be confiscated under Art. 70 para. 1 SCC. Confiscation requires that the assets were obtained through a criminal offence or were intended to induce or reward such an offence. Furthermore, there must be a causal link between the criminal offence and the acquired assets, with the offence being the essential cause for obtaining the benefit. Case law requires that the assets typically derive from the criminal offence and were not merely indirectly enabled by it.

In the present case, the respondent killed his parents, which led to his unworthiness as an heir under Art. 540 para. 1 no. 1 CC. However, the private plaintiffs 1-3 and the respondent concluded a publicly notarised agreement under which the respondent waived his heir status and, in return, received the condominium and CHF 100,000.- from the estate. The Federal Supreme Court found that this agreement constitutes a legally valid transaction that is not directly linked to the criminal offence. The assets were not directly obtained through the homicide offences but through an independent legal transaction aimed at avoiding a costly dispute rather than circumventing the respondent’s unworthiness as an heir.

The appellant argued that the respondent had first acquired his potential heir status through the homicide offences and that the causal link was therefore established. The Federal Supreme Court rejected this argument, as the respondent did not receive the assets as a result of the criminal offence but pursuant to a valid…