Facts
The appellant [Y.] was found guilty by the Cantonal Court of St. Gallen of multiple misappropriation (Art. 138 para. 1 cl. 2 SCC), breach of trust (Art. 158 para. 1 cl. 3 SCC), and mismanagement (Art. 165 para. 1 SCC). He was sentenced to a custodial sentence of 14 months. In addition, civil claims totaling CHF 1,971,194.55 were upheld.
The appellant was the sole shareholder and functional managing director of Ab[. AG] , which operated a retirement and nursing home. He was convicted because:
- He had misused funds amounting to CHF 261,488.50, which had been deposited by the residents of the home as deposits or "residential rights loans", for his clinic project in Munich (misappropriation);
- Between January and September 2003, he had granted unsecured loans totaling CHF 1,214,585.55 to his own companies, which significantly impaired the liquidity of Ab[. AG] (breach of trust);
- Despite the over-indebtedness of Ab[. AG] , he had granted these loans, although there was no business reason for doing so (mismanagement).
Considerations
The Federal Supreme Court upheld the conviction of the appellant on all counts
Regarding the misappropriation, the Federal Supreme Court stated that the deposits and "residential rights loans" made by the home residents were entrusted to the appellant as a trustee, and he would have been obliged to manage these funds in a value-preserving manner. By using them instead for his clinic project, he had committed misappropriation. The appellant was aware of the obligation to preserve the value, so he had acted intentionally and with the intention of enriching himself.
Regarding the breach of trust, the Federal Supreme Court stated that the appellant, as the beneficial owner of Ab[. AG] , would have been obliged…