Theft of waste paper provided for a charitable organization

Facts

The complainant was accused of having deliberately taken around three tons of waste paper that had been deposited on the roadside for the "Gemeinnützige Zürcher Papierabfuhr" (Charitable Zurich Paper Collection) at the end of July 1985 in Zurich. The lower court saw this as theft, as the waste paper was not an ownerless thing, but had been intended for the charitable organization by the owners. The complainant argued that he had believed he was allowed to freely take the unmarked newspaper bundles.

Considerations

The Federal Supreme Court dismissed the complaint. It stated that the waste paper was a "foreign object" within the meaning of Art. 137 para. 1 of the Swiss Criminal Code, as the owners had provided it for the benefit of the charitable organization without abandoning ownership. The complainant had therefore violated the foreign possession by taking the waste paper. Even though the street was a publicly accessible location, the owner had retained the will to exercise control over the object, as he had…