Facts
The case concerns [W.], the owner of a Mercedes-Benz 190E, who had leased the vehicle to M. In the context of debt collection proceedings against [M.], the vehicle was seized on 27 February 1990. [W.] was aware of the seizure and was requested by the debt collection office to file an opposition claim within 10 days to confirm his ownership rights. Instead, [M.] retrieved the vehicle on 20 March 1990 at the request of [W.], who then sold it to a third party.
The transfer authority of the Canton of Basel-Landschaft subsequently convicted [W.] of breach of attachment to a 14-day suspended prison sentence. However, upon appeal, the Criminal Court acquitted him due to lack of proof of the subjective elements of the offence. The Public Prosecutor's Office appealed, and the Higher Court convicted [W.] of breach of attachment to a 5-day suspended prison sentence.
Considerations
The Federal Supreme Court states that the offence of breach of attachment under Art. 169 of the Swiss Criminal Code (SCC) requires, in addition to intent regarding the unlawful appropriation, the intent to harm the creditor. If the intent to harm the creditor is lacking, a conviction for breach of official seizure under Art. 289 SCC may be considered instead.
The Federal Supreme Court criticizes…