Facts
The case concerns a dispute between [Z.], president of the board of directors of company [G.] and [Z.], and the Erbengemeinschaft [K.] and L., regarding the disposal of two objects, a photocopier and a metal piece of furniture, which had been seized in the context of a retention procedure. The court of first instance had acquitted [Z.], but the court of appeal of the canton of Berne had sentenced him to 10 days in prison and to pay 1,650 Swiss francs to the Erbengemeinschaft [K.] and L.
The Bundesgericht was seized of a nullity appeal, in which [Z.] requested the annulment of the judgment of the court of appeal and his acquittal. The court examined the facts and found that [Z.] had sold the objects to company [R.] and Sohn before the seizure, and that the objects had been left in the premises of company [G.] and [Z.] until company [R.] and Sohn removed them.
Considerations
The Bundesgericht examined the applicable legal provisions, in particular article 169 of the Swiss Criminal Code (SCC), which punishes arbitrary disposal of seized assets. The court found that arbitrary disposal implies a positive action, and not a simple abstention. In this case, [Z.] had not acted in a way that would dispose of the objects in an arbitrary manner, but had simply allowed company [R.] and Sohn to remove them.
The court also examined the notion of custody and the…