SWITZERLAND Law and Practice Contributed by: Bruno Ledrappier and Camille Vuillemin-Loup, Charles Russell Speechlys Switzerland
gain, the sophistication of the scheme, the duration of the offending conduct and the harm caused to victims are all relevant factors. Self-reporting and full co-operation can facilitate plea negotiations and potentially reduce sanctions. For legal entities, the adequacy of compliance procedures at the time of the offence is a key factor in determining both liability and the quantum of any fine. 6.3 Proceeds of Crime Recovery Swiss law provides robust mechanisms for recovering the proceeds of crime following a conviction, as well as independent confiscation proceedings. Article 70 SCC mandates the confiscation of assets that are the result of a criminal offence or were intend - ed for use in the commission of an offence, unless the assets are to be restored to the victim. Bona fide third parties who acquired assets for fair value are protected from confiscation. Article 71 SCC provides for a compensatory claim where the proceeds of crime are no longer available for confiscation – for example, because they have been spent or transferred. In such cases, the court may order the payment of an equivalent amount form the convicted person’s lawful assets. The governing legislation is the Swiss Criminal Code (Articles 70–72 SCC) supplemented by the provisions of the Swiss Criminal Procedure Code (CrimPC) gov - erning the execution of confiscation orders. Confis - cation does not strictly require a criminal conviction. Under Article 70 SCC, assets may be confiscated even if no person can be prosecuted, for instance because the accused could not be identified, has absconded or died. The standard of proof for confiscation is the bal - ance of probabilities, which is lower that the criminal standard of proof beyond reasonable doubt (“intimate conviction”). Confiscation is ordered as part of the criminal judge - ment or, in the absence of a prosecution, through a standalone confiscation order. The court determines the recoverable amount based on the financial benefit obtained through the offence and assert their rights. Gain and profits released on invested criminal pro -
ceeds are treated as part of the proceeds subject to confiscation under Article 70 SCC. 6.4 Victim Compensation and Asset Recovery Swiss law provides several mechanisms for compen - sating victims of financial crime. The primary avenue is the adhesion procedure under Articles 122–126 CrimPC, which allows victims to assert civil claims for damages directly within the criminal proceedings. The criminal court may adjudicate these claims alongside the criminal case, provided the facts are sufficiently established and the claim does not unduly complicate the proceedings. If the court considers the civil claim too complex, it may refer the victim to pursue separate civil proceedings. Under Article 73 SCC, where assets are confiscated from the offender, the court must allocate the con - fiscated assets first to the satisfaction of the victim’s claims before any surplus is forfeited to the state. This provision gives victims a degree of priority over the state’s confiscation interest. Victims may assert proprietary rights over misappro - priated assets under Swiss civil and commercial law. Where assets have been directly misappropriated, the victim may bring a claim for restitution under Article 641 of the Swiss Civil Code (CC) or under the law of unjust enrichment (Article 62 CO). Swiss law recognis - es the right to trace misappropriated assets into sub - stitute assets (eg, proceeds reinvested in real estate), provided the victim can establish a sufficient causal link between the original asset and its substitute. In cases involving mixed funds, Swiss law applies the principles of proportional tracing. However, the tracing rules are less developed than in common law jurisdic - tions and may not extend to all forms of commingled assets. In practice, victims in complex financial crime cases often rely on a combination of criminal con - fiscation proceedings, civil claims, and provisional measures (such as asset freezing orders under Article 261 of the Swiss Civil Procedure Code) to maxim - ise recovery. International asset tracing is facilitated through mutual legal assistance, and Switzerland has a well-established framework for cooperating with foreign jurisdictions in the identification, freezing and repatriation of criminal proceeds.
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