Facts

The appellant ([A.] ) was found guilty by the District Court of Dietikon on 18 April 2018 of setting up six gaming machines in his establishment without prior examination, conformity assessment or approval by the Swiss Gaming Board (ESBK). The offence occurred in May 2013. The court sentenced him to a fine of 6,000 Swiss francs, which resulted in an entry in the criminal record.

On appeal by the appellant and cross-appeal by the ESBK, the Higher Court of the Canton of Zurich upheld the District Court’s judgment on both the conviction and the sentence on 19 December 2019. The appellant complained in his appeal to the Federal Supreme Court, in particular about the amount of the fine, the violation of the acceleration requirement during the proceedings and the impact of the criminal record entry on his life. He requested a reduction of the fine to a maximum of 4,900 Swiss francs.

The ESBK and the Zurich Cantonal Prosecutor’s Office requested that the appeal be dismissed. The ESBK submitted a statement in which it concurred with the reasoning of the lower courts. The appellant replied and maintained his requests.

Considerations

The Federal Supreme Court first examined the applicability of the Gambling Act (SBG), which was in force at the time of the offence, compared to the new GamblA. According to the explanatory message on the GamblA, the criminal provisions of the previous law apply to ongoing proceedings unless the new law provides for a milder sanction. The lower courts had applied the SBG, as in their view the new law was not milder. The Federal Supreme Court confirmed this assessment, since the specific comparison method did not result in a milder punishment under the GamblA.

The focus of the examination was the sentencing. The appellant argued that the lower courts had violated the acceleration requirement (Art. 5 para. 1 CrimPC), as the proceedings had lasted more than seven years. The lower courts had acknowledged this and reduced the fine by 2,000 Swiss francs, but had refused a further reduction. The Federal Supreme Court held that the lower courts had not exceeded their discretion, since the procedural delays were partly due to complex administrative qualification proceedings and the offence was classified as a minor misdemeanour.

A key point was the failure to consider the mitigating factor under Art. 48 lit. e SCC, which provides for a reduction in punishment if more than two-thirds of the limitation period have elapsed since the offence and the offender has conducted himself properly. At the time of the lower court’s judgment, more than six years had already passed since the offence, the seven-year limitation period for misdemeanours under the SBG being applicable. The lower courts had not examined this circumstance, even though the appellant had not committed any further offences during this period. The Federal Supreme Court found this to be a violation of essential…