SWITZERLAND Law and Practice Contributed by: Lukas Morscher and Lukas Staub, Lenz & Staehelin
of AML and Sanctions Rules ) as well as market integrity (see 6.8 Market Integrity Principles ). 12.2 Areas of Regulatory Focus In Switzerland, criminal offences, including fraud (see 12.1 Elements of Fraud ), are generally prosecuted by either the competent cantonal public prosecutor’s office or the federal prosecu - tion office of the Swiss Confederation – that is, the Office of the Attorney General of Switzerland (OAG), depending on the specific circumstances of the case. The cantons and Swiss Confedera - tion may further delegate the prosecution and adjudication of contraventions to administrative authorities. Under such delegation, the FDF is the authority responsible for prosecuting vio - lations of the criminal provisions of the Swiss financial market laws. In addition, fraud or non-compliance with organ - isational measures under applicable Swiss finan - cial market laws in relation to an entity subject to prudential supervision by FINMA may lead to regulatory investigation and administrative enforcement (see 2.6 Jurisdiction of Regula- tors ). Furthermore, if FINMA obtains knowledge of criminal offences, it must notify the competent criminal prosecution authorities and may collab - orate in exchanging information. In 2022, FINMA filed five criminal complaints with the cantonal prosecutor’s office, eight with the OAG and 145 with the FDF. FINMA is, however, not empow - ered to prosecute criminal charges on its own initiative. Both the Swiss crime statistics and FINMA’s enforcement statistics on offences reported to criminal authorities do not indicate the exact motives for or underlying types of registered criminal fraud offences, nor the corresponding regulatory focus. As a general note, 29,314 crim - inal fraud offences were recorded in Switzerland
• deceive the victim – eg, by making false rep - resentations, concealing true facts or reinforc - ing an erroneous belief; • act maliciously, which is the case when the perpetrator uses a structure of lies, fraudulent manoeuvres or staging to deceive the victim – in case of a mere statement of false infor - mation by the perpetrator, this may also be considered malicious if the perpetrator either discourages the victim from verifying the information or foresees that the victim will not verify it due to a special relationship of trust; • act wilfully and with the intent of unlawfully securing financial gain for itself or a third party; and • trigger an error on the part of the victim and cause the victim to act to the detriment of its own financial interest or those of a third party, thereby suffering damage. In addition to this general notion of fraud, other criminal offences under the SCC applicable in a commercial context may include, to a certain extent, fraudulent and/or injurious conduct, such as forgery of documents, criminal mismanage - ment and misappropriation, maliciously causing financial loss to another, bribery and corruption offences and money laundering. Beyond the SCC, Swiss financial market laws, as applica - ble, further provide for certain criminal provisions relating to fraudulent and/or injurious conduct. Finally, Swiss financial market laws, as appli - cable, require certain organisational measures, which may include adopting fraud prevention and detection measures. Such obligations may arise, for example, from regulations on risk man - agement and internal controls (eg, specified for the banking sector in the FINMA Circular 2023/1 Operational Risks and Resilience – Banks), AML obligations and sanctions rules (see 2.14 Impact
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