Facts
On May 9, 1974, bankruptcy proceedings were opened against the complainant Sch. However, Sch. refused to provide any information about his financial situation to the bankruptcy office. He concealed that he possessed securities worth 20,500 francs and a current account balance of 886.40 francs. Towards the end of August, Sch. retrieved the securities from the bank and hid them in his apartment.
The District Court of Horgen found Sch. guilty of disobedience in bankruptcy proceedings and other offenses, and sentenced him to two months' imprisonment. The High Court of the Canton of Zurich modified the decision, finding Sch. guilty of fraudulent bankruptcy under Art. 163 para. 1 of the Swiss Criminal Code and sentencing him to five months' imprisonment.
The defense counsel filed a nullity appeal, requesting the annulment of the High Court's judgment and the remission of the case for acquittal from the offense of fraudulent bankruptcy.
Considerations
The Federal Court held that the mere silence of the debtor is only considered a sham reduction of assets if a lower than the actual asset balance is feigned. Whoever merely refuses to provide information about their asset situation is only guilty of disobedience under Art. 323 of the Swiss Criminal Code.
To the extent that the complainant has limited himself to refusing to provide the bankruptcy officer with any information about his asset situation, he is only guilty of disobedience within the meaning of Art. 323 para. 4 of the Swiss Criminal Code. The contested judgment, which also assessed the mere refusal to provide information as a violation of Art. 163 para. 1 of the Swiss Criminal Code, must therefore be annulled and remitted to the lower court for amendment on this point.
As for…