Acting for commercial gain

Good to know

According to a decision of the Swiss Federal Supreme Court, the existence of a commercial gain is dependent on “the time and resources that the offender dedicates to the criminal actions, the frequency of the acts within a given period of time, his anticipated or actual income and whether he committed the illegal activity as his profession, however incidental; the offender must have aimed to receive a relatively regular income, which represents a significant contribution to the financing of his way of life and has consequently become involved in crime to some extent. The offender must hope to gain a relatively regular income, which allows him to make significant contributions to the financing of his lifestyle and personal needs” (cf. BGE 129 Para. 4 253 – in French).

E.g. a person spending much time in the operation of a website offering illegal downloads of protected works and earn revenue with this illegal behavior, acts for commercial gain (BGE 6B_757/2010 fron 7.2.2011 – in German).Any person who has act for commercial gain shall be punished with a custodial sentence not exceeding five years or a monetary penalty.

The custodial sentence must be combined with a monetary penalty.