Facts
The case concerns an employee, [L.], who worked as an accountant for K. AG from September 1994 to the spring of 1995. [L.] asked his colleague, [H.], to provide him with an account to deposit funds from his employer in an illegal manner. [H.] agreed and [L.] made several transfers of funds from K. AG's account to H.'s account using fictitious invoices and manipulating payment orders. [L.] then used part of the money for his own needs.
The public prosecutor's office of the canton of Zurich brought a criminal action against [L.] for fraud, breach of trust, and unauthorized use of patrimonial values. The cantonal court acquitted [L.] of all charges, and the public prosecutor's office filed an appeal with the SCC.
Considerations
The SCC examined the appeal and found that the public prosecutor's office did not contest L.'s acquittal for fraud and breach of trust, but only for unauthorized use of patrimonial values. The SCC decided that the appellant's conclusions had to be interpreted in light of the appellant's motivation and that, in this case, the public prosecutor's office was only seeking a new decision to convict [L.] for unauthorized use of patrimonial values.
The SCC then examined Article 141bis of the Swiss Criminal Code, which punishes the unauthorized use of patrimonial values that have come into one's possession «independently of one's will». The SCC found that the funds in…