Facts
The case concerns the confiscation of 742 pistols under Article 20 of the War Material Act (WMA) and Article 58 paragraph 1 letter b of the Swiss Criminal Code (SCC). The Federal Court was seized by the Attorney General of the canton of Berne, who contested the decision of the Cantonal Court of Appeal of Berne ordering the restitution to the owner of any realization proceeds from the confiscated pistols.
The facts are as follows: on 11 December 1990, the 2nd Criminal Chamber of the Cantonal Court of Appeal of Berne confirmed the confiscation of the 742 pistols in favor of the Confederation, but ordered that the net proceeds from the realization of these pistols be returned to the owner. The Attorney General of the canton of Berne filed a nullity appeal against this decision, contesting the order to restitute the realization proceeds.
Considerations
The Federal Court examined the question of whether the net proceeds from the realization of confiscated war material must be paid to the owner affected by the confiscation. It considered that the confiscation of war material is a security measure and not a penalty, and that its purpose is to prevent the commission of new offenses and not to cause financial harm to the owner.
The Federal Court recalled that, according to case law, the proceeds from the realization of a confiscated object must be returned to the owner if possible, as the confiscation must not go beyond what is necessary to achieve its purpose. It also considered that Articles 20 WMA and 58 SCC do not explicitly provide for the restitution of the realization proceeds, but do not exclude it either.
The Federal Court concluded that, in this case, the restitution of the…