Debtor's Disobedience in Debt Collection Proceedings

Facts

On June 7, 1979, the Police Magistrate's Office of the City of Zurich fined L. CHF 50.- because he was not present at a seizure announced to him by the Debt Collection Office Zurich 2 on May 11, 1979, or had not been sufficiently represented (Art. 323 para. 1 Criminal Code), and because he had not complied with the written request of the Debt Collection Office to appear at the office by May 18, 1979 and provide information about his financial situation, although he had been threatened with punishment by imprisonment or fine in the summons in case of non-compliance (Art. 292 Criminal Code).

[L.] demanded a court assessment. On January 9, 1980, the single judge in criminal matters of the District Court of Zurich found him guilty only of disobedience against an official order within the meaning of Art. 292 of the Criminal Code and confirmed the fine of CHF 50.- imposed by the Police Magistrate's Office. The High Court of the Canton of Zurich dismissed on July 29, 1980 a cantonal nullity appeal filed by [L.] against the latter decision.

Considerations

1. The appellant argues that it is inadmissible to punish offenses that are punishable under Art. 323 of the Criminal Code by applying Art. 292 of the Criminal Code. Art. 292 of the Criminal Code is only subsidiarily applicable to enforce debt collection orders. Both summonses were intended to serve the execution of a seizure. Any criminal act by non-compliance with these summonses falls under Art. 323 of the Criminal Code.

2. According to the prevailing doctrine and case law, Art. 292 of the Criminal Code is a catch-all provision that only applies subsidiarily if the disobedience does not fulfill a more specific criminal provision of federal or cantonal law. As far as the debtor's disobedience in debt collection proceedings is concerned, Art. 323 of the Criminal Code as a special provision takes precedence over Art. 292 of the Criminal Code. However, the prerequisite is that the disobedience is actually covered by Art. 323.

3. In the present case, the announced seizure could not…