Conviction for misappropriation, forgery of documents, and suppression of documents, but acquittal of the charge of abuse of office

Facts

The appellant M. has held the position of a central administrator of the municipality of X. since the fall of 1967 and was responsible for the entire accounting of the municipality. From the beginning of 1969, he began to appropriate money from the municipal treasury entrusted to him by paying salaries and compensation according to the previous year's, no longer valid, rates and keeping the difference to the new, higher rates for himself.

On April 29, 1987, the Cantonal Court of Schaffhausen convicted M. of continued qualified misappropriation, continued forgery of documents in office, and continued suppression of documents, sentencing him to 18 months' imprisonment and 5 years of disqualification from office, both with a suspended sentence. It also affirmed the prerequisites of abuse of office under Art. 312 of the Swiss Criminal Code (StGB), but assumed that this offense was superseded by Art. 140 No. 2 and Art. 317 StGB due to unreal competition of laws.

On appeal by the public prosecutor's office, the High Court of the Canton of Schaffhausen confirmed this judgment on October 2, 1987. It assumed that the objective prerequisites of abuse of office under Art. 312 StGB were not given, and therefore left the issue of competition open.

Against this judgment, the public prosecutor's office of the Canton of Schaffhausen filed a federal nullity appeal with the request to quash the contested judgment insofar as it acquits M. of the charge of continued abuse of office and to remand the case to the lower court for his conviction of this offense as well.

Considerations

Under Art. 312 StGB, members of an authority or officials who abuse their official power to obtain an unlawful advantage for themselves or another or to inflict a disadvantage on another are criminally liable. However, the appellant M. was merely an executive body as a central administrator, who only had to execute the decisions of the municipal council and did not have any decision-making powers relevant in the present context. In particular, he lacked the competence to determine the amount of salaries, compensation, or contributions, and was bound in…