Federal Supreme Court, 09.28.2026, 6B_355/2026
Facts
As the sole director of an asset management company, A manages the assets of several investors using a financial platform. The transactions resulted in significant losses, generally exceeding 90% of the invested capital. Convicted of criminal mismanagement, his conviction was upheld on appeal, with a suspended sentence of 145 daily penalty units at 100 francs each, subject to a three-year probationary period, and a fine of 3,500 francs. He appealed to the Federal Supreme Court, challenging the breach of his obligations, the existence of damages, the finding of eventual intent (dolus eventualis), and the refusal of court-appointed counsel (considerations 2.1, 2.3, 2.4, 2.5, and 3.1).
Law
TheArt. 158 para. 1 clause 1 of the Swiss Criminal Code (SCC) penalizes criminal mismanagement when four conditions are met: a position as manager of another's assets, the breach of a duty to manage or safeguard, causal financial loss, and intent, with eventual intent being sufficient. The scope of a manager's duties is determined in particular by the applicable legal and contractual obligations (considerations 2.2 and 2.3.2).
The duty to inform and provide an accounting is a qualified obligation for an asset manager. It allows the principal to monitor the diligent execution of the mandate, protect their financial interests, and, if necessary, claim damages. A breach of this duty may constitute criminal mismanagement (consideration 2.3.3).
Damages include, in particular, a decrease in assets or exposure to risk resulting in an economic depreciation of the estate. Exact quantification is not required. Eventual intent is established when the perpetrator foresees the damage as possible and nonetheless accepts its occurrence (considerations 2.4.2, 2.5.2, and 2.5.3).
Application to the specific case
Judicial expert report. The appellant criticizes its reliability and alleged superficiality. However, the expert spent 94 hours drafting it; the 6.5 hours cited by the appellant refer only to oral explanations. No arbitrary assessment has been demonstrated (considerations 1.3.1 to 1.3.4).
Breach of management duties. Regarding B and C, the manager failed to properly determine risk profiles or explain the investment strategy. He also failed to communicate significant losses. The clients' theoretical access to the platform did not waive his contractual obligations to inform (considerations 2.3.3 and 2.3.4).
Regarding D, the manager disregarded the contractual limitation of annual losses to 15% as well as the 20% cap applicable to alternative investments, which accounted for approximately 85% of the portfolio. Regarding E and F, he failed to implement the contractual measures guaranteeing full capital protection (considerations 2.3.4 to 2.3.6).
Damages and causality. Losses reached 92%, 95%, 96%, and 89% respectively, depending on the investors involved. Contractual breaches caused or aggravated these losses, notably by preventing clients from intervening to limit their exposure. The damage, therefore, did not result exclusively from unfavorable market trends (consideration 2.4.3).
Eventual intent. Aware of the high risks, the manager continued his operations without informing the clients or applying the agreed-upon protections. He thus accepted the possibility of significant financial loss (consideration 2.5.3).
Court-appointed counsel. Indigence was not sufficiently established, particularly due to a complex financial and corporate situation that was inadequately documented (considerations 3.2 and 3.3).
Outcome
The appeal is dismissed to the extent that it is admissible. The conviction for criminal mismanagement is upheld. Federal legal aid is denied, notably due to a lack of prospects for success, and the reduced court costs, set at 1,200 francs, are charged to the appellant (considerations 4.1 and 4.2).