SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
In cases of fraud, as described in 1.1 General Characteristics of Fraud Claims , the offences carry custodial 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 sen - tence of more than three years; and • 10 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 car - ried 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 stat - ute of limitation does not permit the application of foreign criminal law, and it is not necessary for criminal proceedings actually to have been instituted. 1.5 Proprietary Claims Against Property The legal remedies mentioned in 1.1 General Characteristics of Fraud Claims do not ena- ble persons harmed by fraud to bring property claims over the misappropriated assets. Constructive trusts do not exist under Swiss law.
The recipient of other fraudulently obtained assets (such as claims), including the person who participated in the concealment of stolen assets and of the proceeds 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 confiscation derive from crimes against property, the crime of mon - ey 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 pred - icate offence to the extent of the assets whose confiscation was impeded by the money laun - dering. 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 pre - scribes 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 damages 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 judgment has been issued, the right to claim damages or satisfac - tion prescribes at the earliest three years after notice of the criminal judgment is given (Article 60 paragraph 2 SCO).
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