text: Fighting Money Laundering in Switzerland – Quick Overview – europe-cities.com
  The Swiss anti-money laundering legislation has undergone numerous changes in recent years.
  Under the initiative of the Financial Action Task Force (FATF) in their periodic Reports on Switzerland, numerous revisions of the Money Laundering Act (GwG) were carried out in previous years.
  The latest was adopted this year. A recommendation by the FATF was that lawyers, trustees and trustees should report money laundering to the MROS (Reporting Office for Money Laundering Switzerland) if they are acting as advisors and not as financial intermediaries.
  Parliament has not followed this recommendation in its current form.
  The most important changes and refinements to existing practices in the light of the AMLA are summarized below:
  Obligation to check the beneficial owner (Art. 4 GwG) and to update the customer data (Art. 7 Para. 1bis GwG).
  Abolition of any deadlines for the processing of money laundering reports by MROS (Art. 23 para. 5 AMLA).
  A financial intermediary can now terminate the business relationship after 40 days from reporting a case of money laundering if it has not received any news from MROS about the outcome of the case (Art. 9b AMLA).
  These changes are expected to go into effect shortly (the date will be set by the government).
  The Swiss money laundering system is determined by two aspects. The first aspect is criminal prosecution under Articles 305bis and 305ter of the Swiss Criminal Code (StGB). The second is the monitoring and reporting of suspected money laundering cases under the Money Laundering Act (GwG).
  Article 305bis of the Criminal Code
  According to Art. 305bis, Paragraph 1 of the Criminal Code, anyone who undertakes an act that aims to thwart the determination of the origin, the discovery or the confiscation of assets that he knows or must assume to result from a criminal offense or a serious one is liable Tax offense result in a custodial sentence or a fine.
  A criminal offense within the meaning of the StGB is a criminal offense that is threatened with a prison sentence of more than three years (Art. 10 para. 2 StGB).
  Exempt from the scope of this article are therefore predicate offenses of money laundering, commonly known as predicate offenses, the punishment of which is less than 3 years imprisonment.
  The money launderer is also punishable if the predicate offense was committed abroad and is punishable under the law of that country and it is a criminal offense in Switzerland according to Art. 305bis Para. 3 of the SCC.
  Money laundering of the income from passive private bribery (Art. 322novies StGB) would be in the current system from the scope of Art. 6 Para. 1 Sentence 1 lit. 305bis SCC, since this criminal offense is punishable by a maximum of 3 years imprisonment.
  A predicate offense of bribery of foreign public officials under Art. 322septies SCC, however, would be under Art. 305bis SCC, since the maximum sentence is 5 years imprisonment.
  Paragraph 1bis of Article 305bis must also be taken into account.
  At the behest (or, as one might say, pressure) of the FATF, the above paragraph was added on January 1, 2016. Since falsification for tax evasion is a criminal offense that can be punished with a maximum penalty of 3 years, this was not the case under Swiss law as a criminal offense. This led to complete impunity for early tax offenses, as they are not criminal offenses under Swiss law.
  In summary, these conditions must be met:
  First, a criminal offense committed against a foreign tax authority must constitute tax evasion within the meaning of Art. 186 LIFD;
  Second, the tax evaded during the tax period must exceed the equivalent of CHF 300,000 in foreign currency;
  Third, an act must have been committed to prevent the confiscation of the stolen property (e.g. transfer to a Swiss bank account);
  After all, the predicate offense must be punishable under the law of the country of origin.
  Article 305ter Swiss Criminal Code
  According to Art. 305terStGB, anyone who, as a financial actor, does not identify the beneficial owner of assets with which he has to deal professionally, even though these assets are of legitimate origin, commits a criminal offense. Conversely, the correct identification of the beneficial owner of assets of criminal origin does not lead to a violation of Art. 305ter StGB.
  This article applies exclusively to financial intermediaries, which means that other persons from the scope of Art. 305ter SCC.
  A violation of Art. 305ter StGB would be, for example, if the financial intermediary establishes in the business relationship that the beneficial owner is incorrect and does not take any steps to establish the true identity of the beneficial owner.
  The purpose of this provision is to capture those who are completely indifferent to the identification of the beneficial owner, but who cannot be punished for money laundering as this offense does not include negligence.
  From January 1, 2016 (again under pressure from the FATF), financial intermediaries are entitled to report observations to the Money Laundering Reporting Office at the Federal Office of Police (MROS) that indicate that assets are from a criminal offense or a serious tax offense within the meaning of Article 305bis Paragraph 1bis.
  This provision may appear dispensable if the AMLA already regulates the question of identifying the beneficial owner (Art. 4 AMLA) and the notification to the MROS (Art the Swiss legislators have never repealed it. Although the provisions may overlap, the scope of paragraph 2 of Article 305ter of the Criminal Code differs from that of Article 6 (1) (9) of the MLA (see below).
  Monitoring and reporting within the scope of the AMLA
  The purpose of the AMLA is to impose the banking sector's rules on the identification of customers and beneficial owners on all financial intermediaries.
  The AMLA applies to financial intermediaries (Art. 2 AMLA).
  One of the cornerstones of the AMLA is the obligation to report to MROS in the event of justified suspicion that assets originate from a criminal offense (Art. 9 AMLA).
  The differences between Art. 305ter StGB and Art. 9 AMLA are as follows:
  For item no. 305ter SCC, a probability, a suspicion or even a discomfort about the continuation of the business relationship is sufficient to give the financial intermediary the opportunity to report to MROS.
  For item no. 9 AMLA, much more specific evidence is required, and only in this case does the law establish a reporting obligation.
  The financial intermediary who does not comply with the reporting requirement under Article 9 will be fined up to CHF. 500,000 (Art. 37 AMLA).
  Arts. 4 AMLA also contains an obligation to examine the beneficial owner with the care required in the circumstances. The obligation in this article is similar to that of Art. 305ter StGB, with the difference that the AMLA according to Art. 5, the renewal of the ID in case of doubts in the context of the business relationship.
  MROS plays a central role in the reporting requirements of financial intermediaries. Upon receipt of a report, it must notify the competent criminal prosecution authority immediately if it has reasonable grounds to suspect that a criminal offense under Art. 305bis and 305ter SCC has been committed in accordance with the information provided by the financial intermediary (Art. 23 AMLA).
  Swiss money laundering legislation is constantly evolving. It is evident that any change is tied to the recommendations of the FATF. This can lead to legal uncertainty, especially for Swiss financial actors, who have to adapt to changes more frequently than in other countries. There is no doubt that we will see legislative changes again in the fight against money laundering, but it is not certain whether these will be initiated by the Swiss legislature.
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