SWITZERLAND Trends and Developments Contributed by: Andrew M. Garbarski, Massimo Chiasera and Louis Frédéric Muskens, Bär & Karrer Ltd
admissibility, particularly considering the nemo ten - etur principle. This section examines a recent FSC decision (7B_45/2022 of 21 July 2025) that addresses this issue and marks a departure from previous case law. Factual background and FSC decision In 2014, B SA, with A as president and board mem - ber, sought confirmation from FINMA regarding its regulatory obligations for fund management activities. FINMA responded by requesting the completion of detailed questionnaires, emphasising the obligation to provide truthful information and warning of potential consequences for non-cooperation. After B SA submitted the completed forms, FINMA filed a criminal complaint with the Federal Department of Finance (FDF) against the responsible persons for allegedly conducting unauthorised financial intermedi - ary activities between 2012 and 2014. Administrative criminal proceedings were initiated, resulting in a penal order from the FDF and subsequent judicial review. Ultimately, A was found guilty by the Federal Criminal Court, a decision that was partially upheld on appeal, before A brought the matter before the FSC, raising, among other issues, the violation of his right not to self-incriminate (nemo tenetur principle). In its decision, the FSC reaffirmed that the nemo ten - etur principle is a core component of the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) and Swiss constitutional law. This principle protects individuals from being com - pelled, directly or indirectly, to provide evidence or statements that could expose them from a criminal- law standpoint. The FSC further examined the statutory obligation to co-operate with FINMA under the Financial Market Supervision Act (FINMASA), noting that, while par - ties are generally required to provide information and documents in administrative proceedings, this obliga - tion is not absolute. Specifically, the FSC highlighted that, when the information requested by FINMA could expose the individual or entity to criminal liability, the right to refuse cooperation applies, and the person
or entity must be informed of this right before any evidence gathering by FINMA. In the present case, the FSC found that FINMA had required B SA and A to complete detailed question - naires as part of a pre-enforcement investigation, with - out informing them of their right not to self-incriminate. The FSC determined that the absence of such a warn - ing, combined with the context and the risk of crimi - nal liability, constituted a violation of procedural safe - guards. The FSC clarified that the duty to cooperate in administrative law does not override the nemo tenetur principle when there is a risk of self-incrimination. The FSC held that if such documents/statements (col - lected by FINMA without having informed the affected individual or company of their right not to self-incrim - inate) were to be admitted as evidence in criminal proceedings, this would undermine the procedural protections guaranteed by law and could enable law enforcement authorities to circumvent the safeguards of criminal procedure by first collecting evidence in an administrative context. As a result, the Court concluded that evidence obtained in violation of the right not to self-incriminate – in this case specifically referring to the completed questionnaires – was inadmissible in subsequent criminal proceedings. Accordingly, the FSC ordered that the contested deci - sion be cancelled, and the case returned to the lower court for a new decision, explicitly excluding the inad - missible evidence from consideration. Consequently, the lower court was instructed by the FSC to assess whether the remaining evidence was sufficient to sup - port a conviction. Implications and outlook The new FSC decision confirms that FINMA is, in principle, obliged to hand over evidence to the pros - ecution authorities and can only refuse to do so in exceptional circumstances outlined in Article 40 FIN - MASA. The person or entity affected by the sharing of documents/information between FINMA and the prosecution authorities is not a party to the coopera - tion proceedings and cannot prevent such information from being transmitted. However, the person or entity
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