Misappropriation by a bank employee who was not acting as a professional asset manager

Facts

The Attorney General of the Canton of Bern filed a nullity appeal against the judgment of the High Court of the Canton of Bern, which had convicted the accused [A.] of misappropriation. The Federal Supreme Court had to decide whether [A.] had acted as a professional asset manager within the meaning of Art. 140 No. 2 of the Swiss Criminal Code and thus whether a qualified misappropriation had occurred.

On February 5, 1992, the Criminal Court of Bern had sentenced [A.] to 30 months' imprisonment for misappropriation, with the execution of the sentence being suspended in favor of outpatient psychotherapeutic treatment. On the appeal of the Attorney General and the cross-appeal of the convicted person, the High Court of the Canton of Bern on September 15, 1992 confirmed the finding of guilt, but reduced the sentence to 24 months' imprisonment and waived the outpatient treatment and the suspension of the execution of the sentence.

Considerations

The Federal Supreme Court stated that, according to its case law, a professional asset manager within the meaning of Art. 140 No. 2 of the Swiss Criminal Code is someone who, as an employee of a bank, is (co-)responsible for the management of customer assets. Anyone who performs an activity within a bank for which the bank requires official authorization exercises a profession authorized by the authorities within the meaning of this provision.

However, the lower court conclusively established that the accused [A.] had never held the position of asset manager at the Cooperative Central Bank (GZB). He had merely been a point of contact and had only received and forwarded the customers' funds, without managing them.…