Facts
The appellant [X.] received, due to a mistake by Migros Bank, the account statement of a namesake with a balance of around CHF 380,000. He then ordered a code card for this account and used it to withdraw a total of CHF 80,000 from ATMs on sixteen occasions (three times through a third party) between 26 May 1998 and 6 August 1998. The District Court of Zurich convicted him of commercial fraudulent abuse of a data processing system (Art. 147 para. 1 and 2 SCC) and pornography (Art. 197 no. 3 para. 1 SCC) and sentenced him to 15 months' imprisonment. The High Court of the Canton of Zurich confirmed the conviction and sentenced him to 14 1/2 months' imprisonment and a fine of CHF 500.Considerations
The Federal Court states that Art. 147 SCC also covers cases where "correct" data is used and a "correct" data processing operation is initiated, but the perpetrator lacks the authority to use this data. The variant of the offence of unauthorized use of data covers cases where unauthorized persons intervene in data processing through an otherwise "correct" use of data. The appellant had obtained the code card by deception of the bank and then used…