Federal court: Lucerne promised gold – and stole a lot of money

A man swindles himself 280,000 francs and is sentenced for it. In front of the federal court, he makes his victim jointly responsible – and demands an acquittal. But in vain.

—

His own advertisement in a newspaper was his undoing: The later victim was looking for old gold. A potential seller answered promptly. His story apparently sounded as tempting as it was believable. The two men came into the business. Bloss: The gold, which was supposed to come from an inheritance in Germany, was invented. The first, but by no means the last, lie. Over a long period of time, the alleged seller had persuaded his victim to pay him a total of 280,000 francs – without the latter having received any part of the promised consideration.

First the Lucerne criminal court, then the cantonal court sentenced the accused for commercial fraud to a partially conditional imprisonment of two years and nine months, partly as an additional penalty to an earlier judgment. If he is no longer guilty of anything within the four-year probationary period, he will have to serve one year. But he did not want to accept that, he turned to the federal court and demanded an acquittal there.

A fake friendship

The current ruling by the Federal Supreme Court shows: the accused built an emotional bond with his victim and pretended to be friendship. He backed up the invented stories with documents, including a will from his mother, according to which she would leave him around 300,000 euros after her death. He also issued several loan agreements with which he wanted to reinforce the impression that he would repay the money received.

Although the accused admits that his behavior was bold, he could not be charged with fraud, since the central requirement of malice is missing. His defense strategy: shift part of the responsibility to the victim. In exceptional cases, an acquittal is possible from the charge of fraud if the deceived person has neglected the most basic precautionary measures. The accused argues that the man could have protected himself with a minimum of attention.

According to the Federal Court, the accused acted fraudulently

The Federal Supreme Court rejects all objections. The victim could not be denied a certain good faith and naivete, but the accused had acted fraudulently. “Cleverly and perfidiously” he had worked to instill confidence in his will to repay the amounts. “The success of the deception is not mainly due to the gullibility of the victim, but to the sly actions of the complainant,” ruled the Federal Court – and confirmed the guilty verdict for commercial fraud.

Note: Federal Supreme Court judgment 6B_1299 / 2020 of January 20, 2021