Facts
The case concerns the acquisition of an apartment by a public limited company, R. AG, whose shareholders are natural persons, some of whom are foreign nationals. Notary K. drafted the deed of sale and declared that the company was not under foreign control. However, it was discovered that the financing statements for the purchase of the apartment were false. Documents 1 and 2, which contain these statements, were drafted by K. and signed by shareholders B. and M.
The Generalprokurator of the canton of Berne filed a criminal complaint against K., B., and M. for intellectual forgery in titles. The court of first instance acquitted the defendants, and the verdict was confirmed by the court of appeal. The Generalprokurator then filed an appeal to the SCC.
Considerations
The SCC examined whether documents 1 and 2 constituted intellectual forgery in titles. To do so, it had to determine whether the statements contained in these documents benefited from an objective guarantee of truth. The SCC considered that documents 1 and 2 did not benefit from such a guarantee, as they had not been drafted by a person in a position of trust, such as a notary or an expert, and they did not contain statements that could have been verified by a competent authority.
The SCC also considered that documents 1 and 2 did not constitute intellectual forgery in titles, as they had not been used to deceive a public authority or a person in a position of trust. The statements contained in these documents were mere written lies, which did not benefit from the same protection as intellectual forgery in titles.
The SCC therefore rejected the appeal and confirmed the acquittal…