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Offences

Legal definition

How are ‘money laundering’, ‘terrorism financing’ and ‘fraud’ legally defined in your jurisdiction?

Money laundering

Under Article 301bis, Paragraphs 1 and 1bis of the Penal Code:

"1. Any person who carries out an act that is aimed at frustrating the identification of the origin, the tracing or the forfeiture of assets which he knows or must assume originate from a felony or aggravated tax misdemeanour is liable to a custodial sentence not exceeding three years or to a monetary penalty.

1bis. An aggravated tax misdemeanour is any of the offences set out in Article 186 of the Federal Act of 14 December 1993 on Direct Federal Taxation and Article 59 paragraph 1 clause one of the Federal Act of 14 December 1994 on the Harmonisation of Direct Federal Taxation at Cantonal and Communal Levels, if the tax evaded in any tax period exceeds 300,000 francs."

Terrorism financing

Under Article 260quinquies, Paragraph 1 of the Penal Code:

"Any person who collects or provides funds with a view to financing a violent crime that is intended to intimidate the public or to coerce a state or international organisation into carrying out or not carrying out an act is liable to a custodial sentence not exceeding five years or to a monetary penalty."

Fraud

Under Article 146, Paragraph 1 of the Penal Code:

"Any person who with a view to securing an unlawful gain for himself or another wilfully induces an erroneous belief in another person by false pretences or concealment of the truth, or wilfully reinforces an erroneous belief, and thus causes that person to act to the prejudice of his or another's financial interests, is liable to a custodial sentence not exceeding five years or to a monetary penalty."

Principal and secondary offences

What are the principal and secondary offences in relation to money laundering, terrorism financing and fraud?

See legal definitions above. In addition, a lack of due care in financial transactions is also an offence under Article 305ter of the Penal Code, which states that:

Anyone who professionally accepts, retains, invests or assists in the transfer of third-party assets and fails to determine the identity of the beneficial owner with due diligence in the circumstances will be punished with imprisonment for up to one year or a fine."

Predicate offences

How are predicate offences defined?

Generally speaking, all offences for which a custodial sentence of three or more years is imposed (ie, felonies pursuant to Article 10, Paragraph 2 of the Penal Code) may qualify as a predicate offence. Although a number of these offences are set out in the Penal Code, various other laws also include potential predicate offences for money laundering, including:

  • the Federal Act on Narcotics and Psychotropic Substances;
  • the Federal Act on Weapons, Weapon Accessories and Ammunition;
  • the Federal Act on Direct Federal Taxation; and
  • the Federal Act on the Harmonisation of Direct Federal Taxation at Cantonal and Communal Levels.

Even unlikely offences such as copyright and trademark infringement may constitute a predicate offence for money laundering in certain circumstances (eg, if they are committed for commercial reasons).

De minimis rules

What de minimis rules apply to money laundering, terrorism financing and fraud offences?

No de minimis rules apply to money laundering, terrorism financing or fraud offences. However, a financial intermediary’s obligations may depend on the amount involved in a transaction. For example, in case of cash transactions, the customer need be identified only if the amount exceeded Sfr25,000 (it is proposed that this threshold be reduced to Sfr15,000).

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