Facts
In this case, the Criminal Court of the Canton of Basel-City convicted A.A. of several offences, including fraudulent abuse of a computer system within the meaning of Art. 147 para. 1 SCC. A.A. appealed against this judgment.
The Court of Appeal of the Canton of Basel-City confirmed most of the charges, but qualified certain acts not as fraud, but as fraudulent abuse of a computer system within the meaning of Art. 147 paras. 1 and 2 SCC.
A.A. filed a criminal appeal against this judgment.
Considerations
The Federal Tribunal partially upheld A.A.'s appeal.
According to the case law, the fraudulent abuse of a computer system within the meaning of Art. 147 para. 1 SCC is constituted when the perpetrator places an online order under a false name and chooses a payment service (here A1.) whose automated creditworthiness check remains without incident due to the false data. The payment service suffers damage if the system settles the invoice amount in favour of the shipping company or at least undertakes to do so without being able to recover the amount from the perpetrator.
However, when the perpetrator places an order on invoice under his real name, but has no intention of paying from the outset, this does not constitute a fraudulent abuse of a computer system within the meaning of Art. 147 SCC, but fraud within the meaning of Art. 146 para. 1 SCC, if the orders are processed by persons who…