Prosecutors across the border: Bernasconi, Falcone and Del Ponte

Paolo Bernasconi and the Sottoceneri prosecutor's office

The public prosecutor's office of the Sottoceneri in Lugano was in the 1970s and early 1980s one of the few Swiss prosecution authorities that dealt regularly with international financial crime. Its jurisdiction covered the district in which most of Ticino's banks and fiduciaries were established, and its cases came from the border: currency smuggling, fraud against Italian creditors, bankruptcies of Italian companies with Swiss holding structures and, increasingly, drug money. Paolo Bernasconi, born in 1943, headed the office as First Public Prosecutor of the Sottoceneri. At the Swiss Lawyers' Day (Schweizerischer Juristentag) held in Basel in 1985 he was among those who drew attention to the absence of a money laundering offence in Swiss law, a year before the federal government took up the question.¹ When the Federal Department of Justice and Police decided in 1986 to draft a money laundering offence, it entrusted the task to him. The Federal Council's message of 1989 describes him as "dem damaligen Ersten Staatsanwalt des Sottoceneri TI" and records that he received the mandate from the head of the Department on 21 July 1986.²

Bernasconi delivered his report on 15 September 1986. Its title was Die Geldwäscherei im Schweizerischen Strafrecht. Bericht mit Vorschlägen zu einer Gesetzesrevision (neuer Artikel 350bis StGB), published in Lugano, and the Federal Court later cited it repeatedly in its first judgments on the new offence.³ The report proposed to treat money laundering as an offence against the administration of justice, punishing the obstruction of the authorities' access to criminal proceeds. It also proposed to punish grossly negligent laundering and to allow up to ten years' imprisonment in serious cases. The Federal Council kept the first idea, rejected the second and reduced the third to five years.⁴ Bernasconi's approach thus shaped the structure of Article 305bis SCC as it still stands, even though the federal government chose a narrower version than the Ticino prosecutor had recommended.

Giovanni Falcone and the method of following the money

In Palermo, the investigating judge Giovanni Falcone had developed since the early 1980s a method that became known as following the money. Instead of relying only on witnesses, who in Sicily rarely spoke, he reconstructed the financial flows of the Mafia families through bank records, currency transactions and company registers. Since much of the money had gone through Switzerland, the method required Swiss cooperation. Falcone travelled in person to Switzerland to take part in the execution of his requests for assistance, a practice that his critics in Italy described as "turismo giudiziario", judicial tourism. Leonardo Guarnotta, a member of the Palermo anti- Mafia pool, later wrote that the decisive insight had been "di andare personalmente in altri Paesi a compiere atti o acquisire documenti".⁵

The cooperation ran in both directions. Swiss magistrates from Lugano went to Palermo to question Mafia defendants about accounts in Switzerland, and the Swiss authorities supplied bank documents on the former mayor of Palermo, Vito Ciancimino, which reached the Italian investigators through the Guardia di Finanza.⁶ The maxi-trial judgment records that a judge delegated by the Palermo court took part in hearings in Lugano under a rogatory commission.⁷ For the Ticino prosecutors this cooperation was the main source of information about the predicate offences behind the money they found in local banks. For the Italian investigators the Ticino banks were the place where the anonymous cash of the heroin trade acquired names, account numbers and dates.

The legal basis for this presence was modest. Article 4 of the European Convention of 1959 allowed officials of the requesting State to be present at the execution of a request if the requested State consented. Swiss authorities had discretion to allow it, and in the Ticino cases they used that discretion generously. The revision of the IMAC in 1996 later codified the practice in Article 65a IMAC, which permits persons participating in the foreign proceedings to attend the execution of a request, with the safeguard that their presence may not give them access to secret information before the competent authority has decided whether, and to what extent, assistance is granted.⁸ What Falcone and his colleagues did informally in the 1980s thus became a regular instrument of Swiss mutual assistance law. The bilateral agreement with Italy of 1998 confirmed it again for relations between the two States.

Notes

1. Botschaft of 12 June 1989 (as above), 1075 ("bereits am Schweizerischen Juristentag 1985 in Basel, namentlich von Paolo Bernasconi, dem damaligen Ersten Staatsanwalt des Sottoceneri TI, auf das Fehlen eines Geldwäschereitatbestandes aufmerksam gemacht"); Archivio svizzero di letteratura, "Bernasconi, Paolo a Orelli, Giovanni; Corrispondenza", May 1983, ASL-Orelli-B-2-BERNPA, https://www.helveticarchives.ch/detail.aspx?ID=1493997 (catalogue entry giving Bernasconi's year of birth as 1943). ↩
2. Botschaft of 12 June 1989 (as above), 1075. ↩
3. Botschaft of 12 June 1989 (as above), 1075 (report of 15 September 1986); Federal Court, judgment of 20 January 1993, BGE 119 IV 59, https://servat.unibe.ch/dfr/bge/c4119059.html (citing "BERNASCONI, Die Geldwäscherei im Schweizerischen Strafrecht, Bericht mit Vorschlägen zu einer Gesetzesrevision (neuer Artikel 350bis StGB), Lugano 1986"); Federal Court, judgment of 21 September 1994, BGE 120 IV 323, https://servat.unibe.ch/dfr/bge/c4120323.html. ↩
4. Botschaft of 12 June 1989 (as above), 1073, 1075 and 1078 (grossly negligent laundering; "Zuchthaus bis zu zehn Jahren" in Bernasconi's draft; five years in the Federal Council's draft). ↩
5. Leonardo Guarnotta, "Le casseforti svizzere e l'accusa di fare 'turismo giudiziario'", Domani, 18 August 2023 (excerpt from C'era una volta il pool antimafia), https://www.editorialedomani.it/le-casseforti-svizzere-e-laccusa-di-fare-turismo-giudiziario-bdso8drv. ↩
6. Guarnotta (as above). Ciancimino, mayor of Palermo in 1970–1971, was later definitively sentenced in Italy to eight years' imprisonment for Mafia association and corruption: "Vito Ciancimino", Italian Wikipedia, https://it.wikipedia.org/wiki/Vito_Ciancimino (consulted as a last resort). ↩
7. Bolzoni and Trotta (as above) ("tramite commissione rogatoria internazionale, un giudice delegato dalla Corte ha partecipato a Lugano, in Svizzera, all'assunzione degli interrogatori"). ↩
8. Art. 65a IMAC, https://www.droit-bilingue.ch/en-de/3/35/351.1-65a-84.html (inserted by No. I of the Federal Act of 4 October 1996, in force since 1 February 1997, AS 1997 114, BBl 1995 III 1; para. 3: presence "may not lead to their obtaining access to information within the scope of secrecy before the appropriate authority has decided whether, and to what extent, assistance may be granted"). Art. 4 of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, SR 0.351.1. ↩

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.