Facts

Parties:

  • Appellant: [A.] , represented by attorney Dr. Lorenz Erni
  • Respondents: Public Prosecutor's Office of the Canton of Zurich and [B. AG]

Subject matter:

  • False statements regarding commercial enterprises, multiple forgery etc.; arbitrariness
  • Appeals against the judgment of the High Court of the Canton of Zurich, II. Criminal Chamber, of June 22, 2021 (SB190476-O/U/ad-as)

Facts:

  • [A.] CO the [C. AG] controlled by him was commissioned to establish a holding company in Switzerland and to make its shares tradable on a stock exchange.
  • Mining rights and exploration licenses for Mongolian oil fields held by [D.] through [E.] Ltd. were contributed.
  • The transaction was executed differently: [D.] sold the [E.] shares to [G. AG] for CHF 200 million and offset the purchase price claim as part of the capital increase.
  • Disputes arose between [D.] and [A.] , and a new investor, [H.] , sold shares of [I.] LLC to [G. AG] for CHF 200 million.
  • The charges against [A.] include qualified breach of trust, attempted fraud, multiple obtaining of false certification, multiple forgery, multiple false statements regarding commercial enterprises, and multiple breach of official seizure.

Considerations

The Federal Supreme Court combines several proceedings if they are closely related in substance and are directed against the same decision. As the highest judicial authority, it is not a criminal appellate instance that conducts a free review in factual matters. It bases its judgment on the facts established by the lower court and can only correct CO supplement the findings of fact if they are obviously incorrect CO based on a violation of law.

The appellant challenges the lower court's reasoning regarding the admissibility of the two offsetting releases and the resulting convictions for multiple obtaining of false certification and multiple forgery. The Federal Supreme Court has so far only occasionally addressed abuses in connection with offsetting releases. The lower court concluded that the public documents regarding the capital increases with subsequent offsetting release contained CO obtained a false state of facts. The appellant rightly criticizes the lower court's reasoning as incorrect under contract and corporate law. The Federal Supreme Court concludes that the lower court's convictions for multiple obtaining of false certification and multiple forgery are based on incorrect assumptions under contract and corporate law. The appellant was not assumed to have simulated the purchase price claim and thus a non-contract in this part of the indictment. It cannot be said that a legally significant fact was incorrectly certified with the certified type of transaction of the offsetting release. The legal consequence is therefore not the non-existence of the transaction (non-contract) with relevance under the law of forgery, but the corporate law consequence that a valuation test may need to be carried out. However, the appellant is to be acquitted of the charges that he committed forgery offenses.

Regarding the embellishment of the consolidated financial statements of [J. AG] as of June 30, 2013, the appellant complains that the lower court wrongly assumed that the [G.] shares should have been written down to zero and arbitrarily assumed intent to commit forgery CO false statements regarding commercial enterprises. The lower court concluded that the appellant had assumed the worthlessness of the [G.] shares held by [J. AG] no later than February 5, 2013. The lower court assumes that the appellant had certainty no later than February 5, 2013 that the shares…