Facts

The Criminal Court of Basel-Landschaft convicted [B.] by judgment of 26 May 2021 of multiple, partly qualified embezzlement and multiple forgery of documents to a suspended custodial sentence of 20 months. It acquitted her of the charge of false accusation. It also ordered [B.] to pay damages and party compensation to the Roman Catholic Parish of [U.] and to the Party [D.] Basel-Landschaft (now Party [C.] Basel-Landschaft). The land register restriction concerning the property No. xxx in [U.] was lifted upon the judgment becoming final.

Against this judgment, [B.] , the Insurance Company [A. AG] (as legal successor of the Parish) and the Public Prosecutor’s Office of the Canton of Basel-Landschaft appealed. The Cantonal Court of Basel-Landschaft found [B.] guilty by judgment of 17 January 2023 of multiple, partly qualified embezzlement, multiple forgery of documents and false accusation and sentenced her to a custodial sentence of two years and six months, two years of which were suspended. In all other respects, it confirmed the first-instance judgment.

The facts include the following key points

  • Embezzlement from the Parish of [U.] : [B.] , acting as treasurer and member of the parish council, transferred a total of CHF 316,000.-- (of which CHF 15,000.-- in July 2017 and CHF 301,000.-- in instalments between June and September 2018) from the parish’s accounts to her private accounts between 2017 and 2018. She used the funds for private purposes and to pay invoices related to the renovation of the restaurant “[J.] ”, which she operated together with [K.] . Repayments were only made from September 2019 onwards, fully completed by 8 July 2020.
  • Forgery of documents to conceal the embezzlement: [B.] submitted forged minutes of the parish assembly to the bank to justify the transfers. She also forged an excerpt of the minutes of the meeting of 22 November 2018 to obtain a higher supplementary credit for the church tower renovation.
  • Embezzlement from Party [D.] Basel-Landschaft: As treasurer, [B.] transferred a total of CHF 90,000.-- from the party’s account to her private account between July and November 2018, also for private purposes and to pay invoices for the restaurant “[J.] ”. Repayment was fully completed by 29 May 2020.
  • False accusation: [B.] submitted a forged document (“memorandum – silent loan”) to the Public Prosecutor’s Office to shift responsibility for the embezzlements onto the parish president [F.] .
  • Accounting manipulations: [B.] submitted forged supplier invoices and a manipulated account statement to Party [D.] to present the transfers as lawful payments.

Against the judgment of the Cantonal Court, the Insurance Company [A. AG] (on behalf of the Parish) and [B.] filed an appeal with the Federal Supreme Court. The insurance company requested the setting aside of the land register restriction and an increase in the party compensation. [B.] requested her acquittal CO, at least, a reduction of the sentence and the release of the blocked funds.

Considerations

1. Admissibility of the appeals and procedural issues The Federal Supreme Court joined the two appeals as they were directed against the same decision and raised similar legal issues. The appeal of the Insurance Company [A. AG] was dismissed as inadmissible because it lacked standing to bring the claim for party compensation. Although the lower court had assumed a legal subrogation under aArt. 72 IPA, this provision only covers claims arising from tort, not the reimbursement of procedural costs under Art. 433 CrimPC. The appellant 1 could therefore not rely on a legal subrogation. Moreover, the lower court had not awarded the party compensation to it, but to the respondent 3. The appeal of [B.] was deemed admissible as it had been filed in due form and time and the appellant sufficiently substantiated its objections.

2. Assessment of the facts and arbitrariness Appellant 2 argued that the lower court had arbitrarily assessed the facts. The Federal Supreme Court examined this objection only under the aspect of arbitrariness and concluded that the lower court had made its findings in a coherent and comprehensible manner. The claim that the transfers were to be qualified as fees CO loans was rejected because the parish’s accounting classified the amounts as construction projects and not as compensation. The assertion that the forged documents had reached her computer as a result of a hacker attack was also dismissed as a mere defensive allegation. The lower court was also entitled to reject the appellant 2’s evidence requests in an anticipatory assessment of evidence, as they were not expected to yield new insights.

3. Criminal qualification of the acts The lower court correctly qualified the conduct of appellant 2 as multiple, partly qualified embezzlement (Art. 138 para. 1 no. 2 and para. 2 SCC) and multiple forgery of documents (Art. 251 SCC). Appellant 2, as treasurer and member of the parish council, was an “auxiliary person” within the meaning of Art. 138 para. 2 SCC and had the necessary power of disposal over the parish’s assets. The multiple commission of the offence was rightly assumed as the transfers were made over a longer period and in several instalments. The forgery of documents was also correctly affirmed, as electronic documents are equivalent to written form under Art. 110 para. 4 SCC.…