Is a bank loan an asset 1
Fulfillment of the objective and subjective offense of embezzlement according to Art. 138 No. 1 Paragraph 2 StGB when taking out and using loans
Jurisprudence of the Cantonal Court
Fulfillment of the objective and subjective offense of embezzlement in accordance with Art. 138 No. 1 Paragraph 2 StGB when taking out and using loans
In principle, lenders are to be referred to the civil law options of loan repayment. Criminally relevant embezzlement of a loan is only possible under special circumstances. In appreciation of the teaching and the case law of the Federal Supreme Court, the cantonal court comes to the conclusion that four prerequisites are required, which must be cumulative (Art. 138 No. 1 Paragraph 2 StGB, E.1.-8.).
In the case of embezzlement of assets, the offense consists in behavior by the perpetrator through which the perpetrator clearly expresses his will to thwart the trustor's obligatory claim. Since the subject of the misappropriation of assets is only economically alien to the perpetrator, the victim's assets must be damaged by the act. In the case of claims, it is sufficient to affirm pecuniary damage if the value of the damage is reduced by the offense (E. 9.-11.).
The misappropriation of assets in accordance with Article 138 No. 1 Paragraph 2 of the Criminal Code requires intent and an unlawful intent to enrich on the part of the perpetrator, which is not mentioned in the legal text. Contingent intent is sufficient to affirm the unlawful intent for enrichment (E. 13-15).
The unlawful intention to gain enrichment can be absent if the perpetrator shows a willingness to substitute. The willingness to substitute is composed of the will and the ability to make a substitute. In order to be eligible for compensation, the perpetrator must be able to afford it from his own resources (E. 16-21).
Between June and September 2004, the defendant contacted L.R. Various active members of this association known to him from his function as conductor of the Orchestra Association X. in A. and asked them - sometimes several times - to grant short-term loans of various amounts. In most cases, he spoke of the urgency of receiving the money immediately, as otherwise he would miss the opportunity to purchase a historic fortepiano for himself or his foundation. He must pay for this wing or its transport from France to Switzerland immediately. In one case, he asked an orchestra member for a loan to make a down payment on a property purchase. Here, too, he communicated that he urgently needed the money, otherwise the opportunity to acquire this property would "slip through his fingers". When he took out two loan installments, he asked the orchestra members concerned to give him money so that he could pay taxes in England or do the necessary banking there. Afterwards he had access to a larger sum of money with which he could also repay the loans already received. L.R. himself was in a precarious financial situation at the time the loan was taken out, as evidenced in particular by the excerpts from the debt enforcement registers of two Swiss debt enforcement offices. About a year before the aforementioned loan was taken out, he had received an e-mail from an alleged son of the late President of the former Democratic Republic of Zaire, now the Republic of the Congo, in which he was promised a donation in the millions (hereinafter: Mobutu donation) . In the following months, however, he never had access to this promised money, but instead repeatedly paid large amounts for alleged taxes, fees, preparation of documents, etc. In the course of the criminal proceedings, L.R. claims to be a victim of the so-called "Nigeria Connection" himself. Before the criminal court was L.R. in a judgment of November 5, 2008, he was acquitted of the commission of multiple embezzlement in accordance with Article 138, No. 1, Paragraph 2 of the Criminal Code for failure to fulfill the subjective facts. By submission of November 14, 2008, the public prosecutor's office (hereinafter: appellant) appealed against this judgment and requested the conviction and punishment of L.R. (hereinafter: Appeal) for multiple embezzlement in six of the original seven indicted cases.
1. According to the grounds of the lower court judgment, the Presidency of the Criminal Court came to the conclusion in all cases to be judged that the appeal had objectively fulfilled the facts of multiple embezzlement. Accordingly, the appellant's criticism is not directed against this part of the legal assessment of the facts to be assessed. Nevertheless, the cantonal court checks whether the objective part of the criminal offense has been fulfilled, since in Switzerland the so-called arrest and thus personal liability for debts has been abolished. Thus, the criminal prosecution of a borrower who has not repaid the loan is fundamentally problematic. It should be noted that the granting of a loan is and will basically always be a risky business. Lenders are generally to be referred to the civil law options (but also limits) of loan repayment, and the state law enforcement agencies do not have to deal with the payment behavior of borrowers. This is also the aim of the criticism of the defense of the appeal, which considers the objective fact of multiple embezzlement in the present case to be not fulfilled because the damage suffered by those concerned did not result from the use of the loan contrary to the agreement.
2. Pursuant to Art. 138 No. 1 Paragraph 2 of the Criminal Code, anyone who illegally uses the assets entrusted to him for his or another benefit is liable to prosecution for embezzlement. The object of misappropriation of assets is therefore that entrusted assets . Assets are always entrusted if they are subject to the power of disposal of the person to whom they were handed over in good faith - the settlor has therefore completely given up his custody over them - but economically do not belong to the trustee (BSK Strafrecht II, 2nd edition 2007, Niggli / Riedo, N 76 f. To Art. 138). For this reason, the trustee must always have the same amount and type of property at his disposal from the receipt of the assets until he has to return, pass on or surrender them. This also applies if a corresponding dutiful disposition has to be made at a later point in time. Justifiable things can also be the subject of such an obligation. As a rule, however, loans are to be excluded from this, as the borrower usually only undertakes to reimburse the amount of money borrowed on the agreed date. Exceptionally, however, there may be an obligation to maintain constant value even if there is a loan agreement, in particular if the loan is given for a specific purpose and the permanent obligation to maintain the value forms an essential part of the loan agreement (Rehberg / Schmid / Donatsch, criminal law III offenses against the individual , 8th edition 2003, § 7 Chapter 2.313 b). The teaching on this, however, is not unanimous and deals critically with details of this fundamental statement. Stratenwerth and Jenny raise the question under which conditions the earmarking of loans could result in an obligation to maintain the value. For them it seems uncertain whether it is sufficient if the agreed purpose of the loan is actually aimed at limiting the risk of loss or whether the additional requirement of joint realization of interests while simultaneously exercising control options is required (Stratenwerth / Jenny, Schweizerisches Strafrecht BT I, 6 . Edition 2003, § 13 N 56). Based on other doctrines, Trechsel and Crameri assume that a duty to maintain the value of loans is regularly denied. A sum of money that has been borrowed for a specific purpose can only be considered entrusted if the use directly serves the interests of the borrower (Trechsel / Crameri, Swiss Criminal Code Praxiskommentar, 1st edition 2008, N 14 on Art. 138). Niggli and Riedo do not consider a joint realization of interests associated with the purpose of the loan to be necessary and only demand that it be checked whether the borrower has to constantly dispose of the received assets or a surrogate and accordingly has a duty to maintain the value (BSK Criminal Law II, 2nd edition 2007, Niggli / Riedo, N 68 on Art. 138).
3. Over time, the federal court has had several occasions to rule on the criminal prosecution of an accused of misappropriating loans. This case law reveals a legal development in the subject area. In its assessment of the indictment in the BGE 86 IV 167 case, the Federal Supreme Court tended to be cautious and denied embezzlement of CHF 1,000.00, which a lender had lent to a borrower to settle maintenance debts, even though the borrower had used up the borrowed money for personal purposes contrary to the agreement . As a justification, the Federal Supreme Court stated that in accordance with the purpose of the loan agreed between the contracting parties, the borrower had given the borrower the money in the borrower's own interest and not in the interest of the maintenance creditors. In BGE 120 IV 117, however, the Federal Court affirmed the misappropriation of a loan that had been given to the borrower for the purchase of a certain property. The Federal Court referred to the literature which assumes that the borrower is guilty of embezzlement if he receives money to use it in the interest of the lender or in the common interest of the lender and the borrower, but then contrary to this agreement have the money. The Federal Supreme Court concluded that a borrower could only be guilty of embezzlement if he was obliged to maintain constant value. If no specific purpose is agreed upon when the loan is granted, such an obligation is to be negated. In the given case, however, the lender could have assumed that the borrower would have the necessary funds to repay the loan if the loaned money was used in accordance with the contract. It is obvious that the loan would not have been granted if the lender had known that the heavily indebted borrower with no steady income would use the money to make a living. In BGE 124 IV 9, the Federal Supreme Court confirmed its case law by reiterating that in this case the borrower could assume that the borrower would have the means to repay the loan if the loan was used in accordance with the contract. The definition of the intended use is therefore decisive for the borrower in terms of limiting his risk of loss. It also referred to the literature, which stated that not every contractual reference to the use of the loan is sufficient to justify a trust, but requires that it is a matter of a common realization of interests that has become tangible. In decision BGE 129 IV 257, the Federal Court basically affirmed the embezzlement in a case in which the lender had lent the borrower money so that he could use it as a stake in a game. Despite the high risk of losing the game, the borrower was obliged to take advantage of the chances of winning and not use the money otherwise. The qualification as embezzlement requires that the agreed purpose of use is secure to cover the lending risk or at least suitable to reduce the risk of loss. In this case, embezzlement was denied solely because the lender would not have had any civil law action for reclaim if the loaned money had been used as agreed, since no actionable claim arises from gaming according to Art. 513 (1) OR.
4. The cantonal court comes to the conclusion, taking into account the teaching and case law, that four conditions must be met in each case cumulatively for the affirmation of the misappropriation of a loan. Firstly, when the loan contract is concluded, the borrowed money must be earmarked, i.e. the borrower and the borrower must jointly determine what the money is to be used for. Second, the agreed earmarking must be a sine qua non for the lender. The facts must therefore show that the lender would not have given the borrower the money had he known that the borrower would use it for something other than what was agreed. Thirdly, the agreed purpose limitation must be suitable for limiting the risk of loss. As a fourth and final requirement, the agreed earmarking of the loan must either be in the exclusive interest of the borrower or of both parties or of a person to be benefited according to the request of the borrower. This realization of interests aimed at by the use of the loan can be of a material, but also of an ideal nature.
5. In the present case, D. W. stated that she had given the appellate the money because it was supposed to be used to buy a fortepiano, and she had also informed the appellate about this. BL also made a clear statement, saying that by borrowing money for a fortepiano and transporting it, she felt like a small sponsor of music and further said that she would not have given the appeal if she had known that it was for borrow his personal needs. At K.G. the appeal not only stated that it would use the loaned money to buy a grand piano, but also brought a foundation into play that would take over the grand piano purchase at a later date. He claimed the foundation had the necessary financial resources. He also stated that he needed the grand piano for his orchestra. K.G. stated that she would like to support a musical project. Also towards M.S. the appeal claimed that the money was needed to buy a fortepiano. The latter stated that she had always assumed that the borrowed money would be used for the piano. The appeal also woke B.G. the belief that he would use the money she borrowed to buy a fortepiano. She believed him and did not want to stand in the way of achieving this goal.
6. All lenders, who had been asked by the appeal for a loan to pay for the historic fortepiano or its transport, gave the appeal only because they assumed that the appeal would actually use it for the stated purposes. All these loans were therefore unequivocally earmarked and the earmarking for all borrowers was a conditio sine qua non. Investing money in the purchase of a historic fortepiano is also undoubtedly suitable for limiting the lender's risk of loss. Such an instrument - depending on its condition - has a value of several thousand francs; in addition, the value of such an ancient instrument will increase with the passage of time, which is to be regarded as judicial. The lower court must therefore be approved if it established that the purchase of a fortepiano is an investment that can in principle be made available again if it is resold. By the appeal against K.G. also spoke of the takeover of the wing by a foundation, he gave the impression that there was also a legal entity as a financial guarantor in the background. She could therefore assume that her loan was secured due to the purpose of the loan and the financial responsibility of a foundation. By means of the alleged earmarking of the loans, the appeal had made music funding the aim of the loans. All lenders wanted to support the music as such and not individually support the appeals as an individual. Accordingly, the lending activities pursued a common ideal purpose, which at the same time is suitable to reduce the risk of repayment. With all loans for the purpose of buying a gavel piano or transporting it, the four cumulative requirements for the affirmation of embezzlement of a loan are met.
7. The borrowing in case 7 is to be assessed similarly. In this case too, I.G. It is unmistakable that she gave the Appellate the loan because the Appellate urgently needed it for the down payment of a planned house purchase, according to its information. The loan was therefore earmarked and the earmarking alleged by the appellate was an indispensable prerequisite for lending. The down payment for a house purchase is also particularly suitable for reducing the risk of loss, as it can be assumed that if the loan is later reclaimed, a property will be in the debtor's assets as a liquidation substrate. In this case, the interest of the borrower was directed towards securing the loan debt.If the appeal should have pointed out to her the indispensable necessity of property ownership for a musician, it could also be assumed that there is an ideal interest, as in this case I.G. wanted to enable him to work as a musician by securing the purchase of a house.
8. It can thus be established that the loans granted to the appellate by all lenders are to be classified as entrusted assets within the meaning of Article 138, No. 1, Paragraph 2 of the Criminal Code. The only exceptions to this are those loans or loan installments that were taken out by the Appellate for a purpose other than the financing and realization of the fortepiano or house purchase or the transport of the grand piano. (...)
9. In the case of embezzlement of assets within the meaning of Article 138, No. 1, Paragraph 2 of the Criminal Code, the offense consists in behavior on the part of the offender through which the offender clearly expresses his will to thwart the trustor's compulsory claim. In the case of justifiable items, he manifests this will by, for example, consuming them without simultaneously holding a corresponding quantity of items available to the settlor (BSK Strafrecht II, 2nd edition 2007, Niggli / Riedo, N 98 ff. On Art. 138 ).
10. In the present case, in the course of the criminal investigation against it, the appeal court provided a large number of contradicting information about the actual use of the loans granted to it. The cantonal court follows the lower court assessment of these statements and thus also comes to the conclusion that, contrary to its statements in June 2006, the appeal court did not keep the loan monies in their parents' house in D., but used all the loans for their own personal purposes. In the end, it is irrelevant whether he needed this for the payments he had requested to trigger the alleged Mobutu donation or to finance his personal expenses. Rather, it is decisive that he used the funds contrary to the agreement and did not have the amount or value of money he claimed during the relevant, incriminated period. Due to his precarious financial situation, he was unable to repay the borrowers either during the current loan periods or after they had expired. But even if the appeal had actually kept the loan money in the parents' house, it would have carried out the act. By hiding the money in this case and not paying despite the loan repayments being due and corresponding reminders from the borrowers, he would have manifested his will not to meet their demands. If the pursuit had been continued, these monies, because they were hidden and not declared, would have been withdrawn from the creditors' liquidation substrate. Thus, by misappropriating the loan monies, the appeal has clearly expressed its will to thwart the obligatory claims of its creditors.
11. Since the object of the misappropriation of assets is only economically foreign to the perpetrator, but not legally, an affirmation of misappropriation on the part of the victim of financial loss is required. Embezzlement can only exist if the act of offense endangers the realization of the trustor's compulsory claim. If this happens, the trustor is damaged in his property, since his claim against the perpetrator is reduced in value. However, the property damage is already given with the affirmation of the offense, namely with the affirmation of the unlawful use contrary to the agreement, which is capable of thwarting the trustor's obligatory claim. Accordingly, it was stated in the highest court rulings that embezzlement without harm is conceptually excluded (cf. BSK Criminal Law II, 2nd edition 2007, Niggli / Riedo, N 103 on Art. 138 with reference to BGE 111 IV 19, 23 and BGE 124 IV 241, 244 f, E. 4c and 4d). In the present case it can again be stated that the appeal with the respective use of the loan contrary to the agreement for its personal purposes used up the borrowed funds in such a way that the actions were capable of massively reducing the chances of repayment of the borrowers and thus reducing the value of their obligatory claims accordingly. The defense's criticism that, given the financial situation of the appeal, a repayment could never have been assumed anyway, is wrong insofar as if these funds had been used in accordance with the agreement, there would have been more substrate for recovery in the event of a debt enforcement and the mandatory claims would therefore have enjoyed a disproportionately higher value . Thus, in all cases there is financial loss. (...)
12. ( … )
13. The fulfillment of the offense of misappropriation of assets requires, in addition to intent, the intention to enrich (cf. instead of many Trechsel / Crameri, Swiss Criminal Code Praxiskommentar, 1st edition 2008, N 18 on Art. 138). Intention to enrichment means the perpetrator's intention to unlawfully enrich himself or someone else. In principle, any economic advantage is sufficient as the desired enrichment, whereby this advantage mostly lies in the matter itself (Stratenwerth / Jenny, Schweizerisches Strafrecht BT I, 6th edition 2003, § 13 N 31 et seq.) It is disputed in the teaching whether the intention to enrich one requires direct intent. In this regard, the cantonal court follows the doctrinal opinion and the highest court rulings, according to which the intention is to be understood as the direction of the will towards a specific goal and does not mean the identity of the goal of action and the will to realize it. Therefore, a possible enrichment intention is sufficient (Trechsel, Swiss Criminal Code Praxiskommentar, 1st edition 2008, N 11 to Vor Art. 137, with reference to BGE 72 IV 125 and 105 IV 36), as this was correctly stated by the lower court. Since proof of an internal fact is also required for this element of the offense, it often turns out to be difficult to provide evidence. In this context, the lower court judgment points out that the criminal law principle "in case of doubt for the accused" (in dubio pro reo) is of particular importance here. When assessing evidence, this principle requires the court to rule in favor of the accused if there are any remaining doubts about the facts. The judgment must be based on a conviction which, according to the standard of a level-headed and experienced observer, excludes any reasonable doubt (Hauser / Schweri / Hartmann, Swiss Criminal Procedure Law, 6th edition 2005, § 54 N 19 and 11).
14. In the present case, the appeal claims in five of the six cases to be assessed (cases 1 to 4 and 6) to the lenders that they urgently need the borrowed money to pay for a historic fortepiano or to transport it. The appeal failed to prove to the cantonal court that the fortepiano was still for sale during the summer of 2004, after it had not completed the purchase at the end of May 2004. The only document submitted by him in this connection is dated May 31, 2004. In this letter from the seller, the appeal is requested to collect the instrument immediately in France and therefore to contact the seller immediately. The appeal could not prove any further communication with the seller after receipt of this letter. Since the seller wanted to have the grand piano paid for and picked up immediately at the end of May 2004, it cannot simply be assumed that the possibility of buying the fortepiano would still exist at a later point in time. The relevant statements in the appeal that the fortepiano is still available for sale today are untrustworthy and should therefore be regarded as purely protective claims. It is even less convincing that the urgency of the purchase or the down payment given in each case was present on the individual days of the loan being taken out. According to the statements of the appeal, this urgency was put into perspective again in each individual case and usually on the same day. This representation of the events seems simply unrealistic and it contradicts any life experience that the purchase or payment of a grand piano should always be made immediately at different times and that this urgent payment turns out to be unnecessary each time afterwards. The transport of a grand piano is even less immediately due for payment if the grand piano itself has not even been paid for and is accordingly still there where it should be picked up. A reasonable doubt about this assessment of the facts cannot be seriously considered. The cantonal court therefore assumes that the appeal never seriously intended the use of the funds for these specific purposes when all loans were taken out to purchase a historic fortepiano or to pay for the transport of this grand piano.
15. Even in the case of the alleged purchase of the property in A. (Case 7) or the down payment to be made for such a purchase, the cantonal court assumes that the appeal will be filed with I.G. on July 27 and 29, 2004, respectively, did not intend to use the borrowed money to make such a deposit. In this context, the appeal is only able to provide evidence of an originally planned certification date for the house purchase on May 27, 2004 as well as the draft of a purchase contract. However, the purchase contract was not concluded on the scheduled date. A down payment of CHF 50,000.00 would also have been due on May 27, 2004 according to the draft purchase contract. There are no further documents or other evidence to prove the continued existence of this purchase offer. It again appears extremely unlikely that the seller would continue to hold on to the appeal as a potential buyer after the notarization date had been canceled. Rather, general life experience suggests that the appeal was definitely no longer an option for the seller as a possible buyer after this course of events. The statement of the appeal that he could still have secured the right to purchase this house at the time of this loan is therefore unbelievable. The alleged urgency of a down payment is unbelievable, since the appeal demonstrably did not make a down payment for this house purchase at this point in time. In assessing the available evidence and statements, the cantonal court also assumes in this case that the appeal at the time the loan was taken out for a down payment to the property in question did not actually intend to make this down payment, but rather planned to use the money for other purposes. The cantonal court has no objective reason that could raise reasonable doubts about this assessment of the facts.
16. Since the appeal acted in the knowledge that it had received the loans for a specific purpose - he himself had put the purpose of the loan in the foreground - he was also aware of the economic strangeness of these funds and his obligation to maintain the value and use the loans in the interests of the interests of the borrowers. Due to his financially precarious situation, he was also aware of the high or at least increased risk of repayment due to the use contrary to the agreement. At first glance, it may seem problematic that the appeal at best did not want its creditors to be harmed, despite the apparently intended use of the loan money for other purposes from the outset. Again and again he asserted that he had immediately satisfied the obligatory demands of his borrowers after receiving the Mobutu donation, which is why the intention to cause damage cannot simply be affirmed. Here, however, the will side of the intent in relation to the financial loss overlap with the additionally necessary intention to enrich or the ability to replace the appeal.
17. As correctly stated by the lower court, the unlawful intention to enrich himself can be absent if the perpetrator shows a so-called willingness to substitute and accordingly has the will to provide substitute in due time at the time of the offense. The duration or the point in time of the replacement readiness depends on the specific agreement. The willingness to replace is composed of the will and the ability to provide a replacement. Whether the will was there is largely a question of evidence. Ability to substitute requires that the perpetrator can afford it from his own resources. Strict standards are to be set for the substitutability. It is denied, for example, if the perpetrator could only make a payment on the basis of a third party and this third party is not obliged to pay or the perpetrator first has to take out a loan from a bank (see Trechsel / Crameri, Swiss Penal Code, Praxiskommentar, 1st edition 2008, N 19 on Art. 138).
18. On the basis of this legal situation, the lower instance came to the conclusion that, in view of the objective financial position of the appeal, it was not possible to assume that the appeal was willing and able to replace it. However, it should not end with this statement. In consideration of the entire circumstances of the individual case, it should be noted that the appeal was subjectively based on a different economic situation. Since the appeal was suggested with a professional, fraudulent staging that it could directly dispose of an amount of millions - resulting from the Mobutu donation - in its favor, the appeal was assumed to be solvent. The appeal had carried out transactions on the bogus account, which initially seemed to work, but later turned out to be unsuccessful. In this regard, the masterminds of the alleged Mobutu donation had plausibly explained to the appeals the situation and the reasons for the failure of the transactions, which is why the appeal was the victim of a professionally and cleverly executed fraud by an internationally operating gang at the decisive time for assessing the present indictment always trusted to be able to dispose of his supposed money immediately. A different decision would also have the consequence that the masterminds of the "Nigeria Connection", if one were to get hold of them, could not be put into law for their fraud to the detriment of the appeal in particular - for lack of fulfillment of the fraudulent requirement - which would hardly be appropriate. The unlawful intention of enrichment - as well as a contingent intention with regard to the damage to its lenders - should therefore be denied, especially before the "in dubio pro reo" principle, which is why the appeal should be acquitted for lack of evidence or fulfillment of the subjective facts.
19. ( … )
20. In the opinion of the Cantonal Court, a hypothetical criminal law assessment of the "Nigeria Connection" must not play a role in the present appellation. In the present case, it is not a question of assessing whether or not the criterion of malice in the case of fraud would have to be affirmed in the case of a corresponding charge. In order to assess the existence of an intention to enrich on the part of the appellate, it is only necessary to evaluate the substitute ability and the substitute will of the appellate in the incriminated period. Contrary to the findings of the lower court, it should be pointed out that the appeal in the relevant period could not assume that there would be direct access to an amount in the millions. In fact, more than a year had passed since the first e-mail regarding the Mobutu donation had been received, and the appeal had still not seen, let alone used, a cent of this donation. He had already tried to debit the alleged online account at the beginning of 2004 and had been served with extremely implausible excuses regarding the failure of these transactions. Moreover, if the appeal had actually believed that it had direct access to this money, it would not have been necessary to take out loans. In addition, the appeal has repeatedly admitted that it was plagued by not inconsiderable doubts about the actual receipt of the Mobutu donation. It must therefore be stated that the appeal was not in a position to repay the loan on its own at the time of the respective loan take-up and repayment dates. By using the loan contrary to the terms of the agreement and thus directly reducing the value of the obligatory claim of the individual borrower, he realized the financial loss. The use contrary to the agreement was intentional, which is why his intent with regard to the property damage must be affirmed. The appeal could only have been convinced that this damage could be repaired at the respective point in time when the loan was due - thanks to future replacement ability. On the basis of a reasonable, objective assessment and based on his own assessments in spring / summer 2004, he could no longer count on the Mobutu donation for a long time. In addition, the promised performance of a third party, who is not obliged to pay, is just not enough for the affirmation of the replacement capacity.It must have been clear to the appeal that the Mobutu donation could not be made available through civil law in the event of non-payment; in any case, he never took appropriate steps. It must therefore be stated in agreement with the appellant that at the time the loan was taken out the appellate did not seriously assume and could not assume that it would be repayable and that it was not solvent at the time the loan fell due. Thus, he not only accepted the enrichment with approval, but actually intended it. Rather, it could be said the other way around, he accepted to repay the loan if, contrary to expectations, the donation should still arrive. According to the teaching, however, his intention to enrich himself would also have to be affirmed in the presence of an eventual dolus. With this assessment of the facts there is no room for an acquittal on the basis of the in "dubio pro reo" principle.
21. For the sake of completeness, it should be stated at this point that the appellate's intention to enrich itself would also have to be affirmed if its presentation of the facts relating to the safekeeping of the loan monies were to be believed. In this case, the solvency would have to be affirmed, but not the appeal's willingness to pay. After all loans had become due and the orchestra members concerned became aware that the appeal had taken out loans from several members and did not repay them, criminal charges were threatened and the appeal was given notice of termination of his employment as conductor of the orchestra club X. promised in A. Even under this massive pressure, the appeal did not repay the loan. If he had actually been solvent, he would have clearly demonstrated his unwillingness to pay with this behavior.
KGE ZS of October 20, 2009 i.S. Public Prosecutor Basel-Landschaft against L.R. (100 09 80 [A 10] / GRB)
The appeal has filed a complaint with the Federal Supreme Court against this judgment (decision is currently pending).
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