Facts
The subject of the proceedings are the criminal offences of mismanagement (Art. 165 CP) and multiple forgery of documents (Art. 251 CP). The appellant ([A.] , represented by a lawyer) was a member of the board of directors of [C. AG] and its sole shareholder. He is accused of having prepared false annual accounts for the financial years 2008-2010 by failing to record [C. AG] 's obligations under a licence agreement with [D. GmbH] , which he also controlled. Furthermore, by failing to give notice of over-indebtedness, he allegedly aggravated the over-indebtedness of [C. AG] .
The Criminal Court of the Canton of Zug convicted the appellant on 24 November 2017 of mismanagement and multiple forgery of documents and sentenced him to a monetary penalty of 73 day-fines at CHF 100.--, conditionally suspended with a probationary period of two years, as a supplementary penalty to the judgment of the Public Prosecutor's Office of the Canton of Ticino of 17 September 2012, as well as to a fine of CHF 1'800.--. The Cantonal Court of Appeal of the Canton of Zug dismissed the appeal by judgment of 14 May 2019.
The appellant lodged a criminal appeal with the Federal Supreme Court and requested acquittal of the charges of mismanagement and multiple forgery of documents, as well as remittal for a new decision on costs and compensation. The appeal was dismissed and the court costs of CHF 3'000.-- were imposed on the appellant.
Considerations
The appellant first complained of a violation of the principle of accusation and of Art. 251 CP. The Federal Supreme Court held that the indictment defines the subject matter of the proceedings and must sufficiently specify the charges, both objectively and subjectively, so that the accused can defend himself properly. The charge of multiple forgery of documents was sufficiently specified, since the indictment expressly describes the preparation of false annual accounts and the signing of completeness declarations addressed to the auditors.
Regarding the objective elements of document forgery, the Federal Supreme Court explained that commercial bookkeeping is prescribed by law and is suitable for proving legally relevant facts. A false entry satisfies the offence if it presents a false overall picture and thereby violates accounting rules. The appellant disputed the validity of the licence agreement, arguing that as representative of both companies he had concluded an impermissible self-dealing transaction. According to doctrine and case law, self-contracting is in principle invalid, unless the risk of prejudice is excluded or the representative was specially authorised or the transaction was approved. Where the representative who contracts with himself is also the sole shareholder, the company's need for protection lapses. Since the appellant was the sole organ and sole shareholder, there was no invalid self-dealing transaction.
The Federal Supreme Court confirmed the lower court's assessment that the licence agreement had come into legal effect no later than 2 July 2008. The contract date, the appellant's own statements, the unqualified invoicing of licence fees, a tax ruling and the original filing of the claim in the bankruptcy proceedings supported this. The subsequent withdrawal of the claim in the collocation proceedings does not speak against its existence, as various reasons may exist for it. An agreed deferral of payment changes nothing as to the time at which the debt arose and therefore nothing as to the duty to record it under the principles of proper accounting. The objective elements of multiple forgery of documents were thus established.
As to the subjective elements, the appellant complained of the absence of findings on intent to deceive. The Federal Supreme Court held that the intent to deceive regularly follows from the will to use the document as genuine or true, which here follows from the charges in the indictment. The intent to obtain an advantage lay in delaying the declaration of bankruptcy and concealing the over-indebtedness; an intent…