Facts
The case concerns a businessman, S., who was found guilty of qualified disloyal management for invoicing his employer, R. AG, for quantities of wine at inflated prices, whereas he had purchased them at lower prices via another company he controlled, V. SA. The court of first instance sentenced S. to a suspended prison sentence and a fine, but waived the confiscation of the illicit gain obtained by S. on the grounds that it could result in a double penalty for the defendant if R. AG were also to obtain compensation for the damage suffered.
The Staatsanwaltschaft of the canton of Berne filed a nullity appeal against this decision, requesting that the court order the confiscation of the illicit gain or, failing that, that the state be compensated in the amount of 540,000 francs.
Considerations
On the capacity of the cantonal public prosecutor to file a nullity appeal, the court considered that the Staatsanwaltschaft of the canton of Berne was the public prosecutor of that canton within the meaning of art. 270 para. 1 FCJA and that, pursuant to the provisions of the cantonal judicial organization, the deputy prosecutor was authorized to represent the public prosecutor to file a nullity appeal.
On the confiscation of the illicit gain, the court estimated that confiscation had to be ordered as long as the author was in possession of the illicit gain, but that the judge had to take measures to avoid the author being condemned to pay twice, by ordering confiscation subject to restitution insofar as the author had compensated the injured parties for the damage caused.
On the right to compensation for the injured party, the court considered that, when the conditions listed in art. 60 SCC were met, the judge had to…