Criminal breach of trust regarding loaned funds, trial in absentia, and standing of the complainant party

Federal Supreme Court, 10.02.2026, 6B_370/2025

Facts

A businessman (the appellant) and an investment group (the respondents) entered into a partnership via a Memorandum of Understanding for the purchase and resale of real estate in Eastern Europe. According to the agreement, the appellant was to identify opportunities, take a 20% stake in each project, and receive 20% of the net profits.

The financing was structured in two parts: "onshore" financing for the direct acquisition of land by project companies, and "offshore" financing to cover "additional costs inherent to the investments." For this second part, the respondents granted loans to the appellant, which were paid into his personal account at a bank in Z.________.

In 2007, the appellant received several million euros into this account for specific projects. However, he used a portion of these funds, totaling nearly one million euros, to acquire three luxury vehicles for personal use: a Bugatti EB 110 SS, a Mercedes-Benz GL 450, and a Ferrari Enzo.

Tried in absentia at first instance, the appellant was found guilty of criminal breach of trust, fraudulent bankruptcy, and reduction of assets to the detriment of creditors, and was sentenced to five years of imprisonment. On appeal, the Valais Cantonal Court upheld the conviction for criminal breach of trust but reduced the overall sentence to 42 months. The appellant has filed a criminal appeal with the Federal Supreme Court.

Law

The Federal Supreme Court is examining several legal issues raised by the appellant:

1. Proceedings in absentia (Art. 366 CrimPC): Proceedings may take place in the absence of the accused (proceedings in absentia) if, having been duly summoned, they fail to appear without a valid excuse. Art. 366 para. 3 CrimPC provides an exception allowing for immediate proceedings in absentia if the accused has rendered themselves unable to participate in the hearing. Case law, including that of the ECHR, permits this procedure if the accused has unequivocally waived their right to appear or has sought to evade justice.
2. Standing of the private claimant (Art. 382 para. 1 CrimPC): To appeal, a party must have a "legally protected interest" in the modification of the decision. According to case law (BGE 139 IV 78), the private claimant retains this interest to challenge the accused's acquittal, even if they have waived the right to file civil claims within the criminal proceedings. This interest stems from their status as the injured party and their desire to see the offense recognized.
3. Right to be heard and anticipatory assessment of evidence (Art. 29 para. 2 Const., Art. 139 para. 2 CrimPC): The right to be heard includes the right to request the administration of evidence. However, an authority may refuse an evidentiary request through "anticipatory assessment" if it is certain, without acting arbitrarily, that the proposed evidence is not capable of altering its conviction, which has already been formed based on other elements in the file.
4. Criminal breach of trust (Art. 138 para. 2 SCC): This offense is committed by anyone who, without authorization, uses assets entrusted to them for their own benefit or for the benefit of a third party.
   1. Definition of "entrusted assets": Assets are considered entrusted when the holder is under an obligation to keep them available for a third party or to use them for a specific purpose.
   2. Application to loan agreements: Exceptionally, loaned funds may be considered "entrusted." This is the case when the loan is granted for a clearly defined purpose that also serves to protect the lender's interests (for example, by reducing their risk of loss). Using the funds for purposes other than those agreed upon then constitutes an illicit use.
   3. Subjective element: The perpetrator must act intentionally and with the intent to obtain an unlawful gain.

Application to the specific case

The Federal Supreme Court rejects all of the appellant's claims:

1. Regarding the trial in absentia: The Federal Supreme Court confirms that the conditions were met. The appellant was duly summoned. His excuse, linked to the impossibility of traveling from Russia due to the conflict in Ukraine, was not deemed credible, especially since travel alternatives existed. Above all, his general conduct (leaving Switzerland after being released on bail, concealing his residence, refusing to provide an address for service) demonstrates a desire to evade justice. He therefore culpably placed himself in a position where he could not attend his trial.
2. Regarding the standing of the respondents: The Federal Supreme Court confirms that the injured companies had a legally protected interest in filing a cross-appeal, even without civil claims. Their interest in having the appellant's guilt recognized and in obtaining the forfeiture of the security was sufficient to establish their standing.
3. Regarding the right to be heard: The lower court's refusal to hear certain witnesses and order expert reports was not arbitrary. The court conducted a proper anticipatory assessment, concluding that in a complex and long-standing economic crime case, written documents (contracts, bank statements) constituted more reliable evidence than testimony regarding events that occurred nearly twenty years ago.
4. Regarding criminal breach of trust: The Federal Supreme Court upholds the lower court's analysis. The funds paid into the appellant's "offshore" account were not remuneration or funds at his free disposal. They were loans specifically intended to cover the "additional costs" of real estate projects. This specific allocation served the interests of the lenders (the respondents), as it was essential to the completion of the joint investments. By using these funds to purchase luxury cars, the appellant diverted them from their agreed purpose, thereby committing a breach of trust. His own initial admissions, in which he acknowledged using the money for his lifestyle without his partner's knowledge, corroborate this conclusion.
5. Regarding sentencing and the principle of speed: The Federal Supreme Court finds that the 42-month sentence is not excessive and that the lower court correctly took into account all relevant factors (gravity of the offense, selfish motives, lack of remorse, procedural conduct). The 10% reduction granted for the violation of the principle of speed (due to a two-year period of inactivity during the appeal) is deemed appropriate and does not constitute an abuse of discretion.

Outcome

The Federal Supreme Court rejects the appeal to the extent that it is admissible. The appellant's conviction to a 42-month custodial sentence for criminal breach of trust, fraudulent bankruptcy, and reduction of assets to the detriment of creditors is confirmed. The legal costs are to be borne by the appellant.

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