Facts

Parties and procedural history:

The Federal Supreme Court joined the appeals of the Public Prosecutor’s Office of the Canton of Zurich (6B_584/2024) and the accused [A.] (6B_618/2024) against the judgment of the Higher Court of the Canton of Zurich, Criminal Division I dated 8 April 2024. The subject of the appeals was the conviction of the accused for aiding and abetting commercial fraud and multiple money laundering offences as well as the deportation order issued against him.

Facts of the case:

The accused was convicted by the District Court of Zurich on 18 January 2023 of aiding and abetting commercial fraud and multiple money laundering offences and sentenced to a suspended custodial sentence of 22 months and deported from Switzerland for five years. On 8 April 2024, the Higher Court of the Canton of Zurich increased the sentence to 24 months suspended and otherwise upheld the first-instance judgment.

Alleged offence:

Between 27 April 2021 and 7 May 2021, the accused is alleged to have committed commercial fraud together with unknown perpetrators and to have committed money laundering by making deposits at Bitcoin ATMs. Specifically, he is said to have collected cash obtained from the victims through deception from milk crates, deposited it at Bitcoin ATMs and kept part of the money for himself. Initially, the prosecution accused him of co-perpetration, whereas the lower courts qualified his role as aiding and abetting.

Legal remedies:

The accused applied for acquittal, alternatively a more lenient sentence and the waiver of the deportation order. The Public Prosecutor’s Office applied for a higher sentence (three years and nine months’ imprisonment) and a longer deportation order (eight years).

Considerations

1. Admissibility of the appeals:

The Federal Supreme Court admitted the appeals since both the accused and the prosecution, as parties to the proceedings, had a legally protected interest in the annulment or amendment of the contested judgment (Art. 81 para. 1 lit. a and b FSCA). The appeals were directed against the same judgment, which justified their joinder.

2. Violation of the indictment principle (Art. 9 CrimPC):

The accused alleged a violation of the indictment principle because the indictment had exclusively alleged co-perpetration, whereas the court had convicted him of aiding and abetting. The Federal Supreme Court dismissed this objection. The indictment principle merely requires that the accused is precisely informed in factual terms of the charges against him. The legal assessment is a matter for the court, which is not bound by the legal qualification of the indictment (Art. 350 para. 1 CrimPC). The accused was able to mount an adequate defence since the actus reus was clearly described in the indictment. An incorrect legal qualification in the indictment does not render the proceedings inadmissible.

3. Distinction between co-perpetration and aiding and abetting:

The Federal Supreme Court confirmed the lower courts’ qualification of the accused as an accomplice rather than a co-perpetrator. Co-perpetration requires a common criminal intent and a significant involvement in the planning or execution of the offence (BGE 126 IV 84 para. 2c/aa). The accused, however, had no knowledge of the concrete criminal plan of the masterminds, in particular not of the deception of the victims. His contribution was limited to collecting and depositing the money, which is to be regarded as subordinate support. The lower courts correctly…