Facts
The appellant [X.] was the sole shareholder, managing director, and sole member of the board of directors of [A. AG] , as well as managing director and main shareholder of [B. GmbH] . [A. AG] had been incurring losses since 2008 and had been significantly and increasingly over-indebted since December 31, 2009. The appellant was accused of intentionally delaying the bankruptcy of [A. AG] by at least 2 years and exacerbating the over-indebtedness and insolvency by failing to file an over-indebtedness report and preferring [B. GmbH] to the detriment of other creditors.
The Cantonal Court of Basel-Landschaft convicted the appellant of mismanagement and preference of a creditor and sentenced him to a conditionally suspended fine. The appellant lodged a criminal appeal and requested that the judgment be overturned and that he be acquitted of guilt and penalty.
Considerations
The Federal Court examined the appeal and came to the conclusion that the indictment does not violate the principle of indictment. The indictment sufficiently describes the facts and enables the appellant to exercise his rights of defense appropriately.
The Federal Court found that the appellant had grossly neglected the over-indebtedness of [A. AG] by failing to report the over-indebtedness. This constitutes gross negligence in the exercise of a profession within the meaning of Art. 165 SCC. The causal link between the bankruptcy offense and the exacerbation of the over-indebtedness is given.
The Federal Court also found that the…