SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
nature of the conduct extends to the content of the agreement. The agreement may, however, be voided on the ground of misrepresentation. 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts Article 50, paragraph 1, SCO provides that where two or more persons have together caused damage, whether as instigator, perpetrator or accomplice, they are jointly liable to the person suffering damage. The court determines at its discretion whether and to what extent they have a right of recourse against each other (Article 50, paragraph 2, SCO). Where the participants of the criminal offence caused the same damage together, the claimant may bring claims against any of the participants. The recipient of fraudulently obtained assets shall be liable in torts if they handled (knowingly or in bad faith) stolen “goods” (excluding claims), by taking possession of, accepting as a gift or as the subject of a pledge, concealing, or assisting in the disposal of goods which they know or must assume have been acquired by way of an offence against property only to the extent that they received a share in the gains or caused damage due to their involvement (Article 50, paragraph 3, SCO). The recipient of other fraudulently obtained assets (such as claims), including the person who participat - ed in the concealment of stolen assets and of the pro - ceeds of felonies, shall also be jointly liable with the main perpetrators. The most recent case law specifies that in cases where the assets subject to confisca - tion derive from crimes against property, the crime of money laundering protects not only the interest of the state in confiscation but also the protection of the person harmed by the predicate offence. Therefore, the liability of the money launderer also extends to the damage caused by the predicate offence to the extent of the assets whose confiscation was impeded by the money laundering. 1.4 Limitation Periods As mentioned in 1.1 General Characteristics of Fraud Claims , the main cause of action in cases of fraud is the liability for damages in torts. The right to claim damages or satisfaction prescribes three years
from the date on which the person suffering damage became aware of the loss, damage or injury and of the identity of the person liable for it but in any event ten years after the date on which the harmful conduct took place or ceased (Article 60, paragraph 1, SCO). If the person liable has committed a criminal offence through their harmful conduct, then the right to dam - ages or satisfaction prescribes at the earliest when the right to prosecute the offence becomes time-barred. If the right to prosecute is no longer liable to become time-barred because a first-instance criminal judg - ment has been issued, the right to claim damages or satisfaction prescribes at the earliest three years after notice of the criminal judgment is given (Article 60, paragraph 2, SCO). In cases of fraud, as described in 1.1 General Char- acteristics of Fraud Claims , the offences carry cus - todial sentences of three years and more, excluding sentences of life. Therefore, the right to prosecute is subject to a time limit of: • 15 years if the offence carries a custodial sentence of more than three years; and • ten years if the offence carries a custodial sentence of three years (Article 97, paragraph 1, SPC). If a judgment is issued by a court of first instance before expiry of the limitation period, the time limit no longer applies (Article 97, paragraph 3, SPC). The criminal statute of limitation starts: • the day on which the offender committed the offence; • the day on which the final act was carried out if the offence consists of a series of acts carried out at different times; or • the day on which the criminal conduct ceases if the criminal conduct continues over a period of time (Article 98, SPC). It should be noted that this extended civil statute of limitation does not permit the application of foreign criminal law, and it is not necessary for criminal pro - ceedings to have been instituted.
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