Facts
The case concerns an individual, S., who sold six wireless transmission devices in 1979 and 1980. These devices could not be used legally in Switzerland without a concession or authorization. The buyers used these devices illegally, in violation of Article 42 of the Federal Law on Telegraphs and Telephones (TVG). S. was convicted of complicity in the offense under Article 42 TVG by the Generaldirektion PTT, then was acquitted by the Polizeigerichtspräsident of Basel-City. The Generaldirektion PTT appealed this decision, and the Appellationsgericht of the canton of Basel-City sentenced S. to a fine of 400 Swiss francs.
S. filed a nullity appeal and a constitutional appeal with the SCC, requesting the annulment of the Appellationsgericht's decision and his acquittal.
Considerations
The SCC examined the question of whether the mere sale of wireless transmission devices could be considered as complicity in the offense under Article 42 TVG. It considered that the sale of such devices to buyers who would use them illegally in Switzerland could only be qualified as complicity if the seller knew or should have foreseen that the buyer would use them illegally.
The SCC also examined the question of the subjective element of complicity, namely whether S. had acted with the intention of facilitating the offense or whether he had simply sold the devices without caring about their subsequent use. It considered that the subjective element of complicity was not established, as S. had informed the buyers of the prohibition on using the devices in Switzerland and there was no evidence that he had acted with the intention of facilitating the offense.
The SCC finally annulled the Appellationsgericht's…