Making laundering a crime: Articles 305bis and 305ter SCC (1990)

From the expert report to the message of 1989

The legislative history of the Swiss money laundering offence began in Lugano. After Bernasconi delivered his report in September 1986, the Federal Department of Justice and Police submitted a preliminary draft to consultation from February to June 1987. Twenty-four cantons, six political parties and fifteen organizations replied. All agreed that money laundering should be punishable, but several doubted whether a new offence was necessary, warned that Switzerland might appear as an "American copy" and feared that a negligence offence would place an excessive burden on the financial sector.¹ The Federal Council's message of 12 June 1989 answered these concerns by separating two questions. The intentional laundering of criminal proceeds became an offence against the administration of justice in a new Article 305bis. The failure of financial professionals to identify the beneficial owner of assets became a separate offence of endangerment in a new Article 305ter.²

The message placed the bill in an international setting. It cited the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20 December 1988, the Vienna Convention, which required the parties to criminalize the laundering of drug proceeds and to provide for confiscation. It also cited Recommendation No. R (80) 10 of the Committee of Ministers of the Council of Europe on the identification of customers and the statement of principles of the Basel Committee on Banking Supervision of December 1988 on the prevention of the criminal use of the banking system.³ It compared the American approach, which since 1986 had punished intentional money laundering under 18 U.S.C. §§ 1956 and 1957 and relied on currency transaction reports. The Swiss government noted that Switzerland had no comparable reporting system and that a duty to report dollar transactions could collide with banking secrecy. It also rejected criminal liability of companies, which it left to a later revision of the general part of the Criminal Code, and a limitation of the offence to drug proceeds.⁴

Parliament and the Act of 23 March 1990

Parliament treated the bill under the number 89.043. The National Council debated it on 27 November 1989, three days after the publication of the PUK report on the Kopp affair. The debate turned on two points: whether negligent laundering should be punishable and whether membership of a criminal organization should be expressly mentioned in Article 305bis. A confidential committee protocol with expert testimony had been leaked to the press, which led one of the rapporteurs, the deputy Cotti, to complain that the breach of confidentiality would deter experts from appearing before committees in future.⁵ Both chambers adopted the Act in the final votes of 23 March 1990. After its publication in the Federal Gazette on 1 June 1990 the referendum period expired unused on 2 July 1990. The Federal Council brought the new provisions into force on 1 August 1990.⁶ A cantonal initiative of Geneva calling for the criminalization of money laundering, which had been pending since 1989, was then written off by the Council of States because the new law met its demands.⁷

Notes

1. Botschaft of 12 June 1989 (as above), 1075–1076. ↩
2. Botschaft of 12 June 1989 (as above), 1061–1062 and 1077–1089. ↩
3. Botschaft of 12 June 1989 (as above), 1071–1072 (Vienna Convention of 20 December 1988; Council of Europe Recommendation No. R (80) 10; statement of principles adopted by the central bank governors of the Group of Ten on 12 December 1988). ↩
4. Botschaft of 12 June 1989 (as above), 1073–1074 (18 U.S.C. §§ 1956 and 1957 and currency transaction reports; a duty to report dollar transactions "kann ihrerseits mit dem Bankgeheimnis kollidieren"), 1078 (criminal liability of legal persons "sprengt freilich den Rahmen der Arbeiten am Geldwäschereitatbestand") and 1079 (limitation to drug proceeds "wenig sinnvoll"). ↩
5. Federal Assembly, business 89.043, "Strafgesetzbuch. Revision. Geldwäscherei", Amtliches Bulletin, compilation of the debates, https://www.parlament.ch/centers/documents/de/verhandlungen-89043-1989-d-f.pdf. The record names the rapporteur only as "Cotti". Flavio Cotti had been a member of the Federal Council since 1987, so the rapporteur was presumably the Ticino National Councillor Gianfranco Cotti. ↩
6. Business 89.043 (as above) (final votes of 23 March 1990; BBl publication of 1 June 1990; referendum deadline 2 July 1990); Art. 305bis SCC, history note (in force since 1 August 1990, AS 1990 1077). ↩
7. Council of States, cantonal initiative of Geneva (89.202), sitting of 19 March 1990, Amtliches Bulletin, digitized at https://entscheidsuche.ch/docs/CH_VB/CH_VB_001_89-202_1990-03-19.pdf. ↩

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.