Facts
On 22 September 1993, the District Court of Aarau found H. guilty of property damage, theft, non-payment of military service tax, trespass, and fraud, and sentenced him to an unconditional prison term of five and a half months and a fine of CHF 300.--. An appeal filed by H. against this decision was dismissed by the High Court of the Canton of Aargau on 8 June 1994.
H. has filed a federal nullity appeal, requesting that the judgment of the High Court be set aside and the case be remanded to the lower court for a new assessment.
Considerations
The Federal Court dismisses the appeal, insofar as it enters into it. The lower court assumes that the appellant has committed fraud by selling the goods he had stolen or fraudulently obtained to third parties.
According to Art. 148 para. 1 of the Swiss Criminal Code (old version), a person is criminally liable for fraud if, with the intent of unlawfully enriching himself or another, he fraudulently misleads someone by misrepresenting or suppressing facts, and thereby induces the misled person to act in a way that causes harm to his or another's property. The decisive factor is therefore whether the third party suffers a loss through the acquisition of a stolen or fraudulently obtained item.
Insofar as the lower court assumes that the appellant committed fraud through the sale of the goods he had stolen, it does not violate federal law. According to Art. 934 para. 1 of the Swiss Civil Code, the owner who was robbed can demand the return of the item from the buyer within five years. The item transferred to the buyer is therefore burdened with the claim for restitution of the rightful owner. It therefore does not correspond in value to the purchase price. A financial loss for the buyer must therefore be affirmed.
A violation of federal law is also to…