Facts
On October 14, 1986, the respondent A. cashed three so-called guaranteed postal checks of CHF 300.-- each and on October 17, 1986, two guaranteed postal checks of CHF 300.-- and CHF 200.-- at a Swiss post office, presenting his postal checking card at the same time. He was aware that he was insolvent and that his postal checking account had an insufficient balance.
The President of the District Court of Aarberg found A. guilty of multiple counts of fraud committed to the detriment of the PTT (Swiss Post, Telecom and Transport) and F., and sentenced him to 25 days' imprisonment (suspended). However, the Cantonal Court of Bern qualified the actions to the detriment of the PTT as check and credit card abuse, confirmed the guilty verdict for fraud to the detriment of F., and sentenced A. to 14 days' imprisonment (suspended).
Against this judgment, the Attorney General of the Canton of Bern filed a nullity appeal, requesting that the judgment be set aside and the case be remanded to the lower court for a new decision or conviction of A. for fraud to the detriment of the PTT.
Considerations
The Federal Supreme Court dismisses the appeal. It states that the offense of check and credit card abuse under Art. 148 of the Swiss Criminal Code also applies in a two-party system (here: cashing of uncovered, guaranteed postal checks by the rightful holder at a Swiss post office) and takes precedence over the offense of fraud.
The Federal Supreme Court justifies this by stating that the postal checking card is qualified as a guarantee card for postal checks and its use as intended to obtain the payout despite lack of coverage fulfills the elements of the offense of check and credit card abuse. It is irrelevant that the cashing could also have been done…