Author: Lawyer Enrico Germano
The offences of criminal mismanagement, provided in art. 158 of the Swiss Criminal Code (hereafter SCC), establishes “Any person who by law, an official order, a legal transaction or authorization granted to him, has been entrusted with the management of the property of another or the supervision of such management, and in the course of and in breach of his duties causes or permits that other person to sustain financial loss shall be liable to a custodial sentence not exceeding three years or to a monetary penalty”.
Jurisprudence and doctrine establish that this offence presupposes the fulfilment of three objective and one subjective condition:
i. it is necessary that the perpetrator had a position as a manager
ii. that the manager breached an obligation incumbent on him in the context of that function
iii. that a loss has resulted, and finally
iv. that the manager acted intentionally or with dolus eventualis.1
Other offences against property, such as misappropriation, mismanagement or fraud, as well as the forgery of a document, are often attributed to the perpetrator of the offence of criminal mismanagement.
As the first condition for the offence of criminal mismanagement, the courts understand the manager to be one who has sufficient independence in the sense of an autonomous power of administration over the assets entrusted to him; “It is therefore essential, for there to be management within the meaning of Article 158 SCC, that the manager enjoys sufficient autonomy over all or part of the assets of others, over the means of production or over the personnel of a company”.2
For the offence to be committed, it is necessary, as a second condition, that the manager has transgressed a duty arising from that function. Jurisprudence specifies that in order to establish whether there has been a transgression, it is necessary “first to determine in a concrete manner the content of the obligation or, in other words, to establish what conduct the perpetrator should have adopted” .3
As a third condition, the offence is deemed to have been committed if an economic detriment to a third party has resulted. The most relevant cases are those where “there is a real damage to the assets, i.e. a decrease in assets, an increase in liabilities, a failure to decrease liabilities or a failure to increase assets, or a jeopardizing of the assets, such as to have the effect of diminishing their value from an economic point of view”. 4 Even a temporary economic damage is considered sufficient for the fulfilment of the offence.
As a fourth condition, which is subjective in nature, under Article 12(2) SCC, a person commits a felony or misdemeanour willfully if he carries out the act in the knowledge of what he is doing and in accordance with his will. In this regard, it is sufficient that the perpetrator considers it possible for the act to take place and bears the risk. The second sentence of Article 12(2) CP defines the notion of dolus eventualis,5 which exists where the agent considers it possible that the event or offence will occur and nevertheless acts, since he accepts the consequences even though he does not desire them.6 In the facts, it is often difficult to differentiate dolus eventualis from mere negligence, is not criminally prosecutable. The jurisprudence has established that the difference between dolus eventualis and negligence “operates at the level of will and not of consciousness. There is negligence, and dolus eventualis, when the perpetrator, due to a culpable lack of care, acts on the assumption that the event, which he considers possible, will not occur. On the other hand, there is dolus eventualis when the author considers it possible that such an event will occur and nevertheless acts, accepting it even though he does not desire it”.7
1 Judgement of the Court of Criminal Appeal and Review of Canton Ticino dated October 6th 2015, dossier 17.2015.8 and 17.2015.119, § 7
2 Judgement of the Court of Criminal Appeal and Review of Canton Ticino dated May 15th 15 2019, dossier 17.2019.5, § 15
3 Judgement of the Court of Criminal Appeal and Review of Canton Ticino dated May 15th 15 2019, dossier 17.2019.5, § 15
4 Judgement of the Court of Criminal Appeal and Review of Canton Ticino dated May 15th 15 2019, dossier 17.2019.5, § 15
5 Judgement of The Swiss Federal Court, DTF 133 IV 9 para. 4 e DTF 137 IV 1 para. 4.2.3
6 Judgement of The Federal Criminal Court, dated Mars 6th 2017, 6B_949/2014, § 8.2
7 Judgement of The Federal Criminal Court, dated Mars 6th 2017, 6B_949/2014, § 8.2