Facts
Sch. was convicted by the Court of Appeal of the Canton of Basel-Stadt for forgery of documents and violation of the AHVG (Federal Old Age and Survivors' Insurance Act) to four months' imprisonment. Sch. filed a nullity appeal with the request to be acquitted of the charge of forgery of documents and for the case to be remanded to the lower instance for re-assessment.
The Federal Supreme Court concluded that the punishment of the appellant pursuant to Art. 251 of the Swiss Criminal Code (StGB) for forgery of documents in the form of false certification violates federal law. The impunity for false certification in the administrative law domain under Art. 15 of the Administrative Penal Law (VStrR) precludes the subsidiary application of Art. 251 StGB.
Considerations
According to the case law of the Federal Supreme Court, document offenses that serve solely to unjustifiably reduce the tax liability are covered by the special norms of fiscal criminal law. Art. 251 StGB does not apply if the sought-after unlawful advantage is a tax advantage.
Art. 15 VStrR now covers not only document offenses in the tax assessment procedure, but any such act that is directed against the public good or is intended to produce an unlawful advantage under administrative legislation. Thus, the Federal Legislator has created a…