Facts

The facts can be summarized as follows

  • By a penal order of the District Office of Baden dated April 6, 1979, [J.] was fined CHF 700.- for his involvement in the organization of various lottery events pursuant to § 5 para. 1 lit. a of the Aargau Lottery Ordinance as well as Art. 4 and Art. 38 para. 1 of the Federal Act on Lotteries and Commercial Betting.
  • Upon his objection, [J.] was acquitted of the charge of violation of the lottery legislation by the District Court of Baden in a judgment dated July 12, 1979.
  • The appeal filed by the Public Prosecutor's Office of the Canton of Aargau was dismissed by the High Court - 1st Criminal Chamber - of the Canton of Aargau on March 27, 1980.
  • The Public Prosecutor's Office of the Canton of Aargau then filed a federal nullity appeal with the request to set aside the judgment of the High Court and to remand the case to the High Court for the punishment of the accused for violation of Art. 4 of the Federal Act on Lotteries and Commercial Betting.

Considerations

The Federal Court makes the following reasoning in its decision

  • A federal nullity appeal can only be based on the violation of federal law. Therefore, it must be examined whether the respondent was rightly acquitted of the charge of violation of the Federal Lottery Act.
  • The decisive factor is whether the event organized by the Association A. on September 27, 1978 in Wettingen was a federally permissible tombola within the meaning of Art. 2 para. 1 of the Lottery Act or a prohibited lottery within the meaning of Art. 1 of the Lottery Act.
  • The distinction between a federally permissible tombola and a federally prohibited lottery is determined by the purpose of the event and the person of the…