SWITZERLAND Law and Practice Contributed by: Bruno Ledrappier and Camille Vuillemin-Loup, Charles Russell Speechlys Switzerland
1. Legal Framework and General Principles 1.1 Scope of Financial Crime and General Criminal Law Principles Swiss law does not contain a statutory definition of financial crime. The term is used as a descriptive umbrella covering a broad range of offences, including fraud (Article 146 of the Swiss Criminal Code, SCC), criminal mismanagement (Article 158 SCC), bribery (Article 322ter et seq SCC), money laundering (Article 305bis SCC), insider trading and market manipulation (Articles 154 and 155 Financial Market Infrastructure Act, FINMIA), tax fraud (Article 186 Direct Federal Tax Act, DFTA) and sanctions violations. Swiss criminal liability requires both an objective and a subjective element. Most financial crime offences require wilful intent, though some accept eventual intent. Negligence is only punishable where specifi - cally provided by law, which is rare in the financial crime context. Swiss law recognises attempt, pun - ishable where the offender has begun execution of an offence but not completed it. Conspiracy is not a standalone offence, though participation in a criminal organisation is criminalised. Corporate criminal liability exists under Article 102 SCC. A company may be held liable for offences com - mitted within its business activity where the offence cannot be attributed to any specific individual due to inadequate organisation. For money laundering and bribery, the company may be held liable independent - ly of any individual prosecution where it has failed to take all reasonable organisational measures to prevent the offence (Article 102 (2) SCC). 1.2 Burden and Standard of Proof The burden of proof rests entirely on the prosecu - tion. The accused benefits from the presumption of innocence. The applicable standard is proof beyond reasonable doubt. Swiss criminal law does not gen - erally employ reverse burdens or strict liability in the financial crime context. However, in confiscation proceedings concerning criminal organisations, there is a rebuttable presump - tion that assets controlled by such an organisation are
subject to confiscation, effectively shifting the burden to the affected party. 1.3 Aiding and Abetting Swiss law provides for secondary liability through instigation and complicity. An instigator intentionally causes another to commit an offence and faces the same penalty as the principal offender. An accomplice assists the principal offender; the penalty is subject to mandatory mitigation. Complicity requires intent and a causal contribution to the offence. Swiss law does not recognise a general offence of conspiracy. However, participation in a criminal organisation is a standalone offence under Article 260ter SCC, punish - able by imprisonment of up to ten years. 1.4 Limitation Periods Limitation periods depend on the maximum penalty applicable (Article 97 SCC). For offences carrying a maximum custodial sentence of more than three years, such as Fraud (Article 146 SCC), aggravated mismanagement (Article 158 (1)(3) SCC, aggravated money laundering (Article 305bis(2) SCC) or forgery (Article 251 SCC), the limitation period is 15 years. For offences carrying a custodial sentence of three years maximum, such as mismanagement (Article 158 (1) SCC) or money laundering (Article 305bis(1) SCC), the limitation period is ten years. For minor offences with a maximum custodial sen - tence under three years, the limitation period is seven years. The period runs from the date of the offence. For con - tinuing offences, the limitation period begins once criminal activity has ceased. Swiss law does not pro - vide specific rules for concealed offences that would toll or extend the period. The limitation period ceases to run once a first-instance judgment has been ren - dered before its expiry and does not resume during appeal. Civil recovery actions are subject to general prescription periods under Article 60 of the Swiss Code of Obligations, CO: three years from awareness of the damage and the liable person, subject to an absolute limit of ten years from the harmful act (or 20 years for bodily harm). However, where the harmful act also constitutes a criminal offence subject to a longer
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