Facts
[J.] is employed as a so-called business consultant at a German company that conducted an event operating on a pyramid scheme. He invited three persons from the Basel area in Switzerland to meetings in Germany at various times, where the system was presented to them and they were persuaded to participate. The system is only successful for the participant if they can bring in additional participants. For the first two recruited participants, the recruiter receives CHF 2,000 each, and from the third recruited participant, he receives CHF 3,000.
The President of the Police Court in Arlesheim convicted [J.] on May 7, 1997, for multiple violations of the Lottery Act. The High Court of the Canton of Basel-Landschaft dismissed J.'s appeal on September 9, 1997, and confirmed the contested decision.
[J.] is filing a federal nullity appeal with the request that the High Court's judgment be overturned and the matter be remanded to the lower court for his acquittal.
Considerations
According to Art. 1 of the Lottery Act, lotteries are prohibited. A lottery is considered any event where, in exchange for a stake or upon conclusion of a legal transaction, a financial advantage is offered as a prize, the acquisition, size, or nature of which is systematically determined by the drawing of lots or numbers or by a similar chance-based means. Lotteries serving charitable or benevolent purposes are exempt from the lottery prohibition, provided their issuance and implementation are permitted based on authorizations from the competent cantonal authorities.
In the view of the lower court, the appellant, through the recruitment of three persons in the Basel area to participate in an event falling under the lottery prohibition under the pyramid scheme in Switzerland, conducted a lottery-like undertaking and thereby fulfilled the criminal offense under Art. 38 para. 1 of the Lottery Act.
The Federal Council is authorized to subject lottery-like undertakings to the provisions of this Act on Lotteries by way of ordinance. The Federal Council has made use of this competence. According to Art. 43 no. 1 of the Lottery Ordinance, all events where the pyramid scheme is applied are equated to lotteries. Such an event exists if the delivery of goods, the granting of prizes, or other services are offered on conditions that only represent an advantage for the counterparty of the organizer if they succeed in persuading additional persons to conclude similar transactions.
The acts of implementation pursuant to Art. 4 of the Lottery Act are not merely acts of participation within the meaning of Art. 24 et seq. of the Criminal Code in a "principal offense" of…