SWITZERLAND Law and Practice Contributed by: Bruno Ledrappier and Camille Vuillemin-Loup, Charles Russell Speechlys Switzerland
3. Core Financial Crime Offences 3.1 Fraud and Dishonesty Offences The principal offence is fraud (Article 146 SCC), requir - ing (i) deceit, (ii) a false impression, (iii) an act of dis - position by the victim and (iv) financial damage. The deception must go beyond mere lies; the perpetrator must employ particular cunning or exploit a relation - ship of trust. Fraud carries imprisonment of up to five years, but up to ten years if fraud is committed for commercial gain, which may be the case for asset managers, financial intermediaries and the like. Other key offences include criminal mismanagement (Article 158 SCC), penalising breach of a duty of care causing financial damage, commonly relied upon against disloyal directors or officers. The penalty is imprisonment of up to three years, increased to five years where the offender acts with the intention of securing an unlawful financial gain. Misappropriation (Article 138 SCC) covers unlawful appropriation of entrusted assets and carries up to five years’ impris - onment, extended to ten years if the offence is com - mitted in the context of a specific professional capac - ity. Forgery of documents (Article 251 SCC) is also frequently relevant. 3.2 Bribery and Corruption Swiss law criminalises bribery in both public and pri - vate sectors. Active bribery of public officials (Article 322ter SCC) and passive bribery (Article 322quater SCC) carry imprisonment of up to five years. The giv - ing and accepting of advantages in connection with official duties is also criminalised with imprisonment of up to three years (Articles 322quinquies and 322sex - ies SCC). Bribery of foreign public officials (Article 322septies SCC) carries a custodial sentence of up to five years. This provision applies when the offend - er is located in Switzerland or when the advantage is received in Switzerland. Active bribery of private individuals (Articles 322octies) and passive bribery (322novies SCC) carries a custodial sentence of up to three years. Swiss law does not provide for a standalone “failure to prevent” bribery offence, but companies may incur primary liability under Article 102 (2) SCC where they failed to take reasonable organisational measures to
prevent bribery. This liability applies for participation in a criminal organisation (Article 260ter SCC), money laundering (Article 305bis SCC) and bribery (Articles 322ter, 322quinquies, 322septies and 322octies SCC). 3.3 Money Laundering Money laundering (Article 305bis SCC) criminalises any act apt to frustrate the identification, tracing or con - fiscation of assets derived from a felony. The offence carries up to three years’ imprisonment, increased to five years in aggravated cases (eg, criminal or terrorist organisation involvement, or significant amounts). All felonies may serve as predicate offences; qualified tax offences were added in 2016. Financial intermediar - ies are subject to AML obligations under the Federal Act on Combating Money Laundering and Terrorist Financing (AMLA), including customer due diligence, beneficial owner identification, ongoing monitoring and suspicious activity reporting to MROS. Failure to comply may result in administrative sanctions by FIN - MA (including licence withdrawal) and criminal liability under Article 37 AMLA for wilful violations of reporting Insider trading (Article 154 FINMIA) and market manipulation (Article 155 FINMIA) are punishable by up to three years’ imprisonment or monetary penal - ties. Aggravated offences (Articles 154 (2) and 155 (2) FINMIA) carry a custodial sentence of up to five years when the gain exceeds one million Swiss francs. Market manipulation covers transactions giving false or misleading signals regarding the supply, demand or price of securities. duties (fines up to CHF500,000). 3.4 Financial Services Crime Unauthorised financial services activity is a criminal offence under Article 44 Financial Market Supervi - sion Act (FINMASA) (with imprisonment up to three years). Misleading disclosures may be prosecuted under fraud provisions (Article 146 SCC) or the Unfair Competition Act (UCA). 3.5 Tax Evasion and Financial Reporting Swiss law distinguishes between tax evasion and tax fraud. Simple tax evasion is an administrative offence subject to fines. Tax fraud, involving forged or falsi - fied documents to deceive tax authorities (Article 186 DFTA), is a criminal offence carrying up to three years’
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