From political refuge to financial refuge: the modern legal frame

Persons, papers and money

The history told in this chapter gave Lugano a reputation that outlived its causes. Between 1821 and 1870 the canton was the place where Italian exiles kept their persons, their papers and part of their money safe from the Austrian police and from the courts of the Italian states. The same men who sheltered exiles invested in the economy of the canton. Giacomo Ciani, the banker's son who financed the refugees and owned the Tipografia della Svizzera Italiana, built the Hôtel du Parc in Lugano in 1855 and thereby helped to found the tourist industry of the town.¹ Twenty years later, in 1873, the Banca della Svizzera Italiana was founded in Lugano, the first of the banks whose history Chapter C.IV recounts. More than a century after that, the foundation created for the bank's centenary financed the anthology of political texts from the Ticinese presses on which parts of this chapter rely.² The continuity is one of place and of reputation. It would be wrong to construct a direct institutional line from the exile presses to the private banks, but the image of Ticino as a safe place, close to Italy and beyond its reach, was formed in the decades of the Risorgimento and later attached itself to money.

When Italian capital began to move into Ticino in large amounts, after the First World War and above all after 1945, its owners did not think of themselves as refugees. They were escaping taxes, currency controls, inflation, kidnapping and political risk, as Chapters D.I and D.II describe. Yet the vocabulary of refuge followed them. Contemporary commentators described flight capital as capital seeking asylum. The defenders of Swiss banking secrecy justified it by reference to the protection of persecuted persons, sometimes with good reason and often without. The law, however, distinguishes clearly between the two kinds of protection. A practitioner who advises clients with an Italian background today needs to know where the line runs.

Two kinds of protection

Asylum protects persons. Under Art. 3(1) of the Asylum Act of 26 June 1998 (AsylA, SR 142.31), refugees are persons who in their native country or in their country of last residence are subject to serious disadvantages, or have a well-founded fear of being exposed to such disadvantages, for reasons of race, religion, nationality, membership of a particular social group or political opinion.³ The protection is personal and based on public law. It is granted by the State Secretariat for Migration after an individual examination and carries with it the principle of non-refoulement: the refugee may not be returned to a state where he faces persecution. Asylum says nothing about the refugee's property. It neither protects assets as such nor exempts them from taxation, seizure or confiscation.

Banking secrecy protects information. Art. 47 of the Federal Act on Banks and Savings Banks of 8 November 1934 (Banking Act, BankA, SR 952.0) makes it a criminal offence, punishable by a custodial sentence of up to three years or a monetary penalty, for an organ, employee, agent or liquidator of a bank or of a person under Art. 1b BankA, or for an organ or employee of an audit firm, intentionally to disclose a secret confided to him in that capacity or learned by him in it, and for any person to attempt to induce such a breach of professional secrecy.⁴ Since 1 July 2015 the provision also punishes any person who discloses such a secret, once revealed to him, to further persons or exploits it for himself or another and provides a higher penalty of up to five years' custodial sentence where the offender obtains a pecuniary advantage for himself or another (Art. 47(1)(c) and (1bis) BankA).⁵ The reform was a reaction to the sale of stolen client data to foreign tax authorities. Art. 47(5) BankA reserves the federal and cantonal provisions on the duty to testify and to provide information to the authorities.⁶ Banking secrecy is therefore a duty of professional confidentiality backed by criminal law. It protects the client against private disclosure. It has never protected the client against Swiss authorities acting within their statutory powers, and since 2009 it has offered steadily less protection against foreign tax authorities.⁷

Common misconception. Swiss banking secrecy is sometimes described as a form of asylum for money, comparable to the asylum that Switzerland grants to persecuted persons. The two institutions rest on different legal bases and serve different purposes. Asylum under Art. 3 AsylA protects a person against persecution and return. Banking secrecy under Art. 47 BankA protects client information against unauthorized disclosure by bank staff, subject to the duties to testify and to inform the authorities reserved in Art. 47(5) BankA. Neither institution protects assets against lawful seizure, confiscation or taxation, and neither has ever done so.

Notes

1. Agliati, "Ciani, Giacomo" (above): Ciani contributed to the development of tourism in Lugano by building the Hôtel du Parc in 1855. ↩
2. Viganò, introduction (above), for the publication of Riforme Rivoluzione Risorgimento by the Fondazione del Centenario della Banca della Svizzera Italiana. See Chapter C.IV. The founding year of BSI (1873). ↩
3. Asylum Act (AsylA), SR 142.31, Art. 3 (above). ↩
4. Federal Act on Banks and Savings Banks of 8 November 1934 (Banking Act, BankA), SR 952.0, Art. 47(1)(a) and (b), German and French text reproduced at https://www.droit-bilingue.ch/de-fr/9/95/952.0-47-100.html (consulted 5 October 2026). Negligence is punishable by a fine of up to CHF 250,000 (Art. 47(2) BankA), and the breach remains punishable after the end of the employment (Art. 47(4) BankA). ↩
5. Commission de l'économie et des redevances du Conseil national, report of 19 May 2014 on parliamentary initiative 10.450 "Réprimer durement la vente de données bancaires", https://www.parlament.ch/centers/documents/fr/bericht-wak-n-10-450-2014-05-19-f.pdf (consulted 4 October 2026), with the proposed Art. 47(1)(c) and (1bis) BankA. Both provisions were "eingefügt durch Ziff. I 2 des BG vom 12. Dez. 2014 über die Ausweitung der Strafbarkeit der Verletzung des Berufsgeheimnisses, in Kraft seit 1. Juli 2015 (AS 2015 1535; BBl 2014 6231 6241)", according to the footnotes to Art. 47 BankA at droit-bilingue.ch (above). ↩
6. Art. 47(5) BankA (text above): "Vorbehalten bleiben die eidgenössischen und kantonalen Bestimmungen über die Zeugnispflicht und über die Auskunftspflicht gegenüber einer Behörde." ↩
7. The decisive steps were the Federal Council's decision of 13 March 2009 to adopt the OECD standard on administrative assistance in tax matters (Art. 26 OECD Model Tax Convention), announced in the media release "Switzerland to adopt OECD standard on administrative assistance in fiscal matters", 13 March 2009, https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-25863.html (consulted 5 October 2026), and the introduction of the automatic exchange of information under the Federal Act of 18 December 2015 on the International Automatic Exchange of Information in Tax Matters (AEOIA), SR 653.1, in force since 1 January 2017 (Art. 42 AEOIA, https://www.droit-bilingue.ch/en-de/6/65/653.1-42-47.html, consulted 5 October 2026). See Chapter E.II. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.