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6S.605 / 1999/ bue

CASSATION COURT
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March 2, 2000

The following are involved: President of the Federal Court of Justice Schubarth, President of the Court of Cassation, Federal Judge Schneider, Wiprächtiger and court clerk Näf.

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In matters

Y .________, complainant, represented by advocate Roland Winiger, Amthausquai 27, Olten,

against

Public Prosecutor of the Canton of S o l o t h u r n,
Swiss Federal Prosecutor's Office,

concerning
multiple disloyal management
(Art. 159 para. 1 aStGB);
Offenses against the Federal Law on Banks
and savings banks (Art. 46 Para. 1 lit. c BankG) etc., has resulted:

A.- 1.) The District Court of Olten-Gösgen spoke to Y .________ with an interim decision of June 3, 1996 and with a decision of November 5, 1996 of the charge of multiple offenses against the Banking Act (within the meaning of Art. 46 Para. 1 lit. c and Art. 49 Paragraph 1 lit. e and Paragraph 2 BankG) free. It convicted him in two cases of unfaithful management (within the meaning of Art. 159 Para. 1 of the German Penal Code). In numerous other cases, it acquitted him of the allegation of disloyal management.

The federal prosecutor's office and the Y .________ appellation and the public prosecutor's office of the canton of Aargau filed a follow-up appeal against this judgment.

2.) The higher court of the canton of Solothurn pronounced Y .________ guilty of multiple deliberate violations of the Banking Act (within the meaning of Art. 46 Para. 1 lit. c BankG) in 64 cases and multiple unfaithful management (within the meaning of Art. 159, Paragraph 1 of the German Civil Code) in 29 cases and sentenced him to a prison sentence of 10 months, conditionally enforceable with a probationary period of 2 years. In ten cases it acquitted him of the allegation of unfaithful management. The procedure for violating the Banking Act within the meaning of Art. 49 Paragraph 1 lit. e and Paragraph 2 BankGhas been discontinued.

B.- Y .________ challenges the judgment of the higher court with a constitutional appeal and with a federal appeal for nullity. With the latter, he requests that it be set aside and that the matter be referred back to the lower court for reassessment.

The higher court and the federal prosecutor's office have waived counter-remarks or consultation. The public prosecutor of the canton of Solothurn applies for the annulment complaint to be dismissed.

The Federal Supreme Court is considering:

1.- a) According to Art. 46 Paragraph 1 lit. c