Facts
The case concerns a decision of the Swiss Federal Court of 27 April 1990, in the case [A.] v. Public Prosecutor's Office of the Canton of Uri. The defendant, [A.], was convicted by the Cantonal Court of Uri for simple bankruptcy and mismanagement, as well as for failure to keep accounting records, to a sentence of 2 years and 3 months' imprisonment and a fine of 3,000 Swiss francs.
The facts of the case are as follows: two public limited companies, X. AG and Y. AG, were established in 1979 and went bankrupt in 1981. The defendant, [A.], was the chairman of the board of directors of company [B. AG], which was the controlling body of the two companies. Company [B. AG] did not keep accounting records for the two companies, and the defendant was accused of having committed acts of simple bankruptcy and mismanagement as a controlling body.
The defendant filed a nullity appeal against the decision of the Cantonal Court, arguing that the controlling body could not be held liable for simple bankruptcy and mismanagement, and that the accounting records had not been kept due to the fault of the company itself.
Considerations
The Federal Court examined the criminal provisions applicable to controlling bodies of public limited companies. Article 165 of the Swiss Criminal Code (SCC) provides that the controlling body that commits acts of simple bankruptcy or mismanagement is liable to punishment. However, the Court considered that the controlling body cannot be held liable for simple bankruptcy or mismanagement if it has not committed deliberate or grossly negligent acts.
The Court also examined the provisions relating to the accounting of public limited companies. Article 166 of the SCC provides that the debtor who fails to…