Newspaper competition where participants had to submit the solution via a 156 telephone number

Facts

[D.], the responsible director of publishing company X., announced a competition in a newspaper where the five actors who had previously portrayed "James Bond" had to be selected from 16 listed names. The solutions could be entered using a corresponding number combination via a 156 telephone number at a rate of CHF 0.86/min. until the participation deadline on November 15, 1995. All correct answers were entered into a draw for a total of 21 prizes.

The single judge for criminal matters of the Zurich district convicted [D.] on January 30, 1997 of (intentional) violation of the Federal Act on Lotteries and Commercial Betting (LG) and imposed a fine of 500 Swiss francs. The High Court of the Canton of Zurich dismissed the cantonal nullity appeal filed against this on May 22, 1997.

[D.] is filing a federal nullity appeal with the request that the decision of the High Court be overturned and the matter be remanded to the lower court for her acquittal of guilt and punishment.

Considerations

According to Art. 38 para. 1 LG, anyone who issues or conducts a lottery prohibited by this Act shall be punished. Lotteries are generally prohibited under Art. 1 para. 1 LG, with exceptions for tombolas, lotteries for charitable or benevolent purposes, and premium bonds.

The legal definition of a lottery in Art. 1 para. 2 LG contains four characteristics: (1) the participant's stake or the conclusion of a legal transaction, (2) the prospect of a prize, (3) systematicity, and (4) the aleatory element.

The stake within the meaning of the lottery legislation is the higher fee of CHF 0.86/min. for the use of the 156 telephone…