Facts
X AG imported semi-finished automatic pistols, which fall under the War Material Act, with the consent of the Directorate of the Federal Military Administration. The semi-finished products were finished, assembled, and stored for export at the X AG facility. In March 1989, X, together with Z, staged a burglary theft in the X AG warehouse to sell 1020 pistols ready for export to Z, who wanted to resell them abroad. A total of 742 pistols could be seized on April 5, 1989 in an air-raid shelter in Switzerland.
The District Court of Biel found X guilty, among other things, of repeated and continued violations of the War Material Act and ordered the confiscation of the 742 pistols in favor of the Confederation. The High Court of the Canton of Bern confirmed the confiscation but ordered that any proceeds from the realization by the Confederation be refunded to X AG.
X is filing a federal nullity appeal with the request that the confiscation decision be overturned and the matter be remanded to the lower court with the instruction that the seized 742 pistols be returned to X AG.
Considerations
The Federal Court states that according to Art. 20 WMA, if a violation of the War Material Act is established, the judge must order the confiscation of the war material in question, unless there are special reasons to the contrary.
The Federal Court denies that the lack of a threat to public order within the meaning of Art. 58 para. 1 lit. b SCC can be a "special reason" within the meaning of Art. 20 WMA for refraining from confiscation. The legislator has created a regulation in Art.…