Misappropriation in Swiss criminal law: diversion from the agreed use

You entrust a sum of money to a manager, or you lend your car to a colleague. If the object is not returned or is used for purposes that were not agreed, with the aim of enriching oneself or benefitting a third party, this may be criminally punishable!

Misappropriation is provided for in Article 138 paragraph 1 SCC. A person is guilty of misappropriation who, in order to obtain for himself or for a third party an unlawful enrichment, appropriates a movable object that has been entrusted to him, or who, without right, uses for his own benefit or for the benefit of a third party assets that have been entrusted to him.

Within the framework of this offence, anyone may be the perpetrator. Next, a movable object (car, computer, tool, etc.) or assets (any financial asset) belonging to another must have been handed over by the person who suffers the loss to the person who commits it. The offence thus presupposes that the person who commits it has acquired the possibility to dispose of the object or the assets with the consent of the owner. In this respect, it is important that, by an agreement, a specific allocation of the movable object or the assets has been defined. This makes it possible to set the limits. The predetermined use may consist in keeping, managing, handing over, etc. (ATF 133 IV 21, consid. 6.2 p. 27). The criminal behaviour consists in using the object or the assets contrary to the instructions received, departing from the intended purpose, and this with a view to enriching oneself or enriching a third party. Both components are essential.

By way of example, the person to whom you have handed over a sum of money for a specific purpose uses the funds in a way other than that which was agreed. It may also be a case of misappropriation if the person refuses to return what you have entrusted to him, and this without any right; it is necessary that the application of a right of retention be excluded (Articles 895 et seq. of the Civil Code).

On the subjective level, the perpetrator must have acted intentionally and with the aim of obtaining an unlawful enrichment. The aim of enrichment may be realised with conditional intent; this means that the perpetrator envisages the enrichment as possible and nevertheless acts, even if he does not desire it, because he accepts it in the event that this result occurs (Judgment of the Federal Supreme Court 6B_918/2019 of 28 November 2019, consid. 4.1).

In conclusion, if you entrust a good or a sum of money to someone and that person makes a diverted use of it with the aim of enriching himself or benefitting a third party, this may go beyond a simple failure to keep a promise. Misappropriation is when trust is betrayed for profit.