Introduction

The Federal Supreme Court recently ruled that a Swiss-based asset management company's disclosure of client information to US authorities with a view to facilitating the conclusion of a non-prosecution agreement violated Article 271 of the Criminal Code.

The responsible chair of the company claimed that he had and could not have been aware that he was committing an unlawful act at the time of the relevant conduct.(1) It did not help the chair that he had commissioned a legal opinion from a renowned law firm and additional expertise from a professor of law prior to delivering the data to the Department of Justice (DOJ).

The court found that there had been no error as to the unlawfulness of the act and that a conscientious person – being aware of the interests at stake – would have behaved more cautiously and sought approval from the competent authorities prior to delivering the client information to the US authorities.

No bypassing of judicial assistance

Pursuant to Article 271(1)(1) of the Criminal Code, anyone who acts on Swiss territory on behalf of a foreign state without official approval of the federal authorities will be punished if such acts are attributable to an authority or a civil servant. The provision is intended to prevent the exercise of foreign official power on Swiss territory and thus to protect the state monopoly of power and Swiss sovereignty. Regardless of whether it is carried out by a person formally holding an official position, an act attributable to an authority or an official is any act which characterises itself as such by its nature and purpose. Therefore, the decisive factor is not the offender, but the official character of the act. The competence to approve a specific act in favour of another state within Switzerland lies exclusively with the respective Swiss federal department or ministry.

Switzerland provides judicial assistance in criminal and civil matters or administrative assistance in tax matters based on international treaties or the substantive law (eg, the International Mutual Legal Assistance Act). The distinction between the routes for assistance are established in the law and have been upheld by the Federal Supreme Court precisely in the context of attempts by foreign authorities to gain access to information on client or employee-related data from banks and asset managers (for further details please see "Distinction between administrative assistance in tax matters and legal assistance in criminal matters" and "No bypassing of rules guaranteeing due process in judicial assistance in criminal matters").

In the present case, the asset management company requested the DOJ to apply for disclosure of client files through administrative or judicial assistance, but the DOJ declined to do so. Instead, it pressed the asset management company to furnish pertinent information as part of the latter's cooperation undertaking. Eventually, the asset management company yielded.

What constitutes an error as to unlawfulness?

On 9 May 2018 the Federal Criminal Court acquitted the chair,(2) arguing that he had acted under an erroneous belief that he was not committing an official act in favour of a foreign state on Swiss territory (error of fact pursuant to Article 13 of the Criminal Code rather than error of law pursuant to Article 21 of the code). Therefore, the question put before the court was whether the chair had acted under an error of fact rather than an error of law and, in the latter case, whether such an error was excusable.

The court rejected the lower court's view that Article 13 was pertinent. In its opinion, the chair had not ignored the fact that the disclosure of client information to the DOJ would, by its nature, constitute an official act in furtherance of a foreign state's interests. Rather, he had acted under the belief that the disclosure was lawful in the circumstances. According to Article 21, a person who is not and cannot know that they are acting unlawfully is not deemed to be committing an offence. However, this defence is available only if the person was plainly unconscious of the act's unlawfulness. Even a remote sense that the act might be unlawful precludes the perpetrator from invoking Article 21.

In the court's opinion, the fact that the chair had sought a legal expert's advice was evidence that he doubted the lawfulness of the disclosure of client information. Moreover, both the opinion obtained from specialised attorneys and the professor of law's expertise were insufficiently clear to eliminate such doubt. The legal opinion stated that "this is a grey area and arguments for the applicability of art. 271 to the Scenario cannot be excluded so that a residual risk of violating art. 271 remains".

The subsequently obtained expert opinion also did not exclude a violation of Article 271 of the Criminal Code, but was somewhat more optimistic that the act would be excusable. The court concluded that the chair had known that he was operating in a "grey area". In the circumstances, a prudent person would have requested authoritative approval. Instead the chair had opted to rely on advice that was favourable to the firm's preferred legal position and then proceeded to deliver up information to the DOJ. Hence, the chair had not acted under an excusable error as to the disclosure's unlawfulness.

Comment

The Federal Supreme Court's decision reiterates that it does not look favourably on persons who take matters into their own hands and bypass the competent Swiss authorities in furtherance of foreign state interests. International pressures may have led to a certain erosion of Swiss statutes protecting privacy and sovereignty in recent years, but Article 271 of the Criminal Code persists.

Anyone considering disclosure of information within the context or for the purposes of foreign proceedings – whether criminal, administrative or civil – is advised to seek the approval of the competent Swiss authorities, unless the intended act has been judged unproblematic by the unambiguous opinion of renowned independent legal experts.

For the sake of completeness and as a matter of established practice, official approval is regularly denied by Switzerland if the route of administrative or judicial assistance is available to the foreign authority in interest.

For further information on this topic please contact Bernhard Loetscher or Aline Wey Speirs at CMS von Erlach Poncet Ltd by telephone (+41 44 285 11 11) or email (bernhard.loetscher@cms-vep.com or aline.wey@cms-vep.com). The CMS von Erlach Poncet Ltd website is available at www.cms.law.

Endnotes

(1) Federal Supreme Court Decision 6B_804/2018 of 4 December 2018.

(2) Federal Criminal Court Decision SK.2017.64.

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