Facts
The company P. GmbH was fined CHF 4,500 by the Federal Office of Communications with a penal order dated March 25, 1993 for marketing unauthorized subscriber equipment pursuant to Art. 57 para. 1 lit. d FMG in application of Art. 7 VStrR. In parallel, an administrative criminal proceeding was also conducted against the responsible person of the company Z. regarding the same devices.
In the files of this proceeding against Z., there was a file note dated July 7, 1992, according to which the hand-held radio devices "Hynamic 9821" in question had an extremely low, effectively radiated power. This file note was not made known to the company P. GmbH until September 2, 1993.
With a request for revision dated September 22, 1993, the company P. GmbH applied for the annulment of the penal order and its acquittal. However, the Federal Office of Communications rejected the request for revision by order dated March 31, 1994.
Considerations
The Federal Supreme Court considers the file note of July 7, 1992 as a new, significant fact within the meaning of Art. 84 para. 1 lit. a VStrR. Although the Federal Office of Communications was aware of the file note, it had not taken it into account in the proceedings against P. GmbH. Since the file note contains information on the low range and radiated power of the devices, it is relevant for the legal assessment and sentencing.
The Federal Supreme Court states that the range of radio devices is important for the…