Facts

P. G. Schwegler, the owner of a trading company, and his authorized agent Eberle, with the assistance of Denis, the managing director of a Belgian company, repeatedly imported cobalt from Belgium to Switzerland and from there to Austria during the period from July 4 to August 29, 1956. Schwegler and Eberle declared the goods at the Swiss customs clearance as "deoxidation cobalt steel filters made of cadmium-plated sheet metal", which were therefore customs-cleared under tariff number 788 b. During a new partial shipment declared for export to Austria on August 31, 1956, the Customs Office of Buchs SG found that it was not usable filters, but a disguised cobalt shipment. By order of November 5, 1956, this was reclassified under the lower rates of tariff number 878, and Schwegler was refunded the excess customs duty paid.

On December 18/20, 1956, the Criminal Investigation Service of the Zurich Customs Authority questioned Schwegler, Eberle and Denis in writing about the accusation of having incorrectly declared a total of 17,973.6 kg of cobalt for export under tariff number 788 b instead of number 878. On January 5, 1957, Schwegler filed a complaint against the refund order, requesting that the customs clearance under tariff number 788 b be confirmed. He appealed the dismissive decision of the Federal Customs Directorate of June 12, 1957 to the Federal Customs Appeals Commission. This dismissed the appeal on May 29, 1959.

Since goods falling under tariff number 878 require a special export permit, and the shipments in question had been incorrectly declared under tariff number 788 b, the Federal Finance and Customs Department fined Schwegler CHF 250,000, Eberle CHF 44,839.50 for smuggling within the meaning of Art. 76 No. 2 of the Customs Act, and Denis CHF 56,049.35 for aiding and abetting.

Upon request for judicial review, the District Court of Zurich and, by judgment of May 10, 1962, the High Court of the Canton of Zurich acquitted the defendants of guilt and punishment, the High Court on the grounds that the criminal prosecution had become time-barred.

Considerations

The Court of Cassation decided that the criminal prosecution could not become time-barred during the appeal proceedings initiated by Schwegler against the refund order. According to Art. 284 CPC, violations of federal fiscal laws, which include customs offenses, become time-barred after two years. However, the statute of limitations is interrupted by any prosecution action taken against the perpetrator.

The law does not contain an express provision on whether the procedure for…