New SFT Precedent concerning the Swiss Anti-Money Laundering Act
Yesterday, the Swiss Federal Tribunal (SFT) uploaded to its website a new judgment dated 7 August 2018 (case reference: 6B_1453/2017), in which it dealt with Art. 9 of the Swiss Anti-Money Laundering Act (AMLA), which contains the important duty of financial institutions in Switzerland to file a report with the Money Laundering Reporting Office Switzerland (AML Reporting Office) in the event of a suspicion of money laundering. Any violation of this duty to report suspicions of money laundering is to be punished with a fine (Art. 37 of the AMLA).
This new precedent 6B_1453/2017 has been marked by the SFT as being a judgement that will be included in its official publication of significant cases.
The principal issue discussed in this new precedent is related to the controversial question of whether the above-mentioned reporting obligation to the AML Reporting Office ceases once the criminal authorities have been informed, possibly by a third party, of the relevant suspicion of money laundering. The exact moment when the reporting obligation ceases is relevant, in particular, in relation to the beginning of the seven-year limitation of persecution period.
More specifically, in an earlier precedent 142 IV 276 dated 24 May 2016, the SFT had, in essence, stated that in the matter at the basis of this precedent the obligation to report pursuant to Art. 9 of the AMLA existed until the Swiss Federal Prosecutor opened an investigation (“L’obligation de communiquer a donc subsisté, jusqu’à l’ouverture, le 15 mars 2007, de l’enquête de police judiciaire par le MPC“; at consideration 5.4.2 of the judgment 142 IV 276). The quoted sentence could be understood as meaning that the obligation to report a suspicion of money laundering to the AML Reporting Office does in any event cease as soon as the criminal authorities have been informed of the possible case of money laundering. However, in the new precedent discussed herein, the SFT strongly qualifies the meaning of the sentence in question. It does so by advancing two aspects (see consideration 3.4 of the new precedent 6B_1453/2017):
First, the SFT refers to Art. 3(1) of the Federal Ordinance on the AML Reporting Office dated 25 August 2004 (the Reporting Office Ordinance), which lists all the information that reports to the mentioned office have to include. In this regard, the SFT points out in the new precedent 6B_1453/2017 that the criminal complaint that had been filed in that case by a third party did not cover all the information that, pursuant to Art. 3(1) of the mentioned federal ordinance, would have had to be included in a report to the AML Reporting Office.
Second, the SFT mentions that unlike in the matter at the basis of the earlier precedent 142 IV 276, in the case at the basis of the new judgment discussed herein the opening of a criminal investigation had not been accompanied by a seizure of the relevant monies.
On the basis of these two aspects the SFT then draws the conclusion that in the case before it the relevant criminal complaint, which did not include all the information pursuant to Art. 3(1) of the Reporting Office Ordinance and did not lead to an immediate seizure of the relevant monies, did not have the effect of eliminating the obligation pursuant to Art. 9 of the AMLA to file a report of suspected money laundering with the AML Reporting Office. The SFT’s decisive consideration in this regard is contained in the following sentence (at consideration 3.4 of the new precedent 6B_1453/2017):
“Le principe fondamental applicable en la matière, selon lequel l’obligation de communiquer perdure aussi longtemps que les valeurs peuvent être découvertes et confisquées […], devait faire subsister une telle obligation tant que les autorités pénales n’avaient pas connaissance du sort des valeurs pouvant être liées au blanchiment d’argent, soit tant que celles-ci pouvaient encore leur échapper. Au demeurant, une telle solution se justifie dès lors que l’obligation de communiquer, au sens de l’art. 9 al. 1 LBA, vise en définitive à permettre la découverte ainsi que la confiscation des valeurs concernées […]. ”
Of course, each individual case must be considered separately, what this new precedent nicely illustrates. That said, in practice the new ruling should have the consequence that a criminal complaint filed by a third party will only lift the reporting obligation under Art. 9 of the AMLA if and when the criminal complaint contains all the information pursuant to Art. 3(1) of the Reporting Office Ordinance and/or leads to the seizure of the monies in question.
PHH, Zurich, 21 August 2018 (www.haberbeck.ch)
The information contained in this post is for general informational purposes only and is not intended to constitute legal advice. Readers of this post should not take any actions or decisions without seeking specific legal advice.