Negligent Breach of the Duty to Report by a Bank Director

Facts

The Economic Criminal Court of the Canton of Bern acquitted the bank director [L.] of the charge of unfaithful business management, but found him guilty of negligent failure to report to the Swiss Federal Banking Commission pursuant to Art. 49 of the Banking Act and fined him CHF 1,000. He was accused of failing to report to the Banking Commission the exceeding of the permissible limit for uncovered obligations of a client.

[L.] filed a federal nullity appeal against the conviction and fine, requesting that the judgment be set aside on the issue of guilt and that he be acquitted by the lower court.

The Federal Supreme Court dismissed the appeal.

Considerations

According to the binding findings of the lower court, [L.] had been entrusted, as the successor to the CEO M., with the task of reviewing a collateral exchange between the Cantonal Bank of Bern (KBB) and the O. Holding. In this context, he was presented with an incorrect compilation of the obligations of the O. Holding, which did not reveal the exceeding of the permissible uncovered obligations.

The lower court accused [L.] of failing to report to the Banking Commission pursuant to Art. 21 of the Banking Ordinance, even though the uncovered obligations of the O. Group had increased to CHF 148.84 million as a result of the collateral exchange, thereby exceeding the limit of…