The criminal law in application: Articles 305bis, 305ter, 260ter and 102 SCC

Money laundering after the tax reform of 2016

Article 305bis SCC punishes any person who carries out an act that is aimed at frustrating the identification of the origin, the tracing or the forfeiture of assets which he knows or must assume originate from a felony or from a qualified tax offence. The basic offence carries a custodial sentence of up to three years or a monetary penalty. Serious cases include those in which the offender acts as a member of a criminal or terrorist organization or of a group formed for continued money laundering, or achieves a large turnover or substantial profit through commercial money laundering. In such cases the penalty is a custodial sentence of up to five years or a monetary penalty, combined with a monetary penalty of up to 500 daily penalty units. The offender is also liable where the main offence was committed abroad, provided it is also liable to prosecution at the place of commission (Art. 305bis(1), (2) and (3) SCC).¹

The decisive change for Lugano came with the Federal Act of 12 December 2014 implementing the revised FATF recommendations of 2012, in force since 1 January 2016. It inserted paragraph 1bis. Under this provision a qualified tax offence is an offence under Article 186 of the Federal Act on Direct Federal Taxation or Article 59(1) of the Federal Act on the Harmonization of Direct Cantonal and Communal Taxes, if the taxes evaded amount to more than CHF 300,000 per tax period.² Foreign tax offences can be predicate offences under paragraph 3 if they correspond to such a qualified tax offence. For decades the business of the Ticino financial centre with Italian clients had rested on the distinction between undeclared money and criminal money. The reform meant that assets of an Italian client who had committed tax fraud with falsified documents on a sufficient scale could now be the object of money laundering. Chapter E.II describes how the Italian voluntary disclosure programme of 2015 and the automatic exchange of information from 2017 reduced the stock of such assets. Chapter G.IV treats the interaction between tax cooperation and the criminal law in detail.

The case law of the Federal Supreme Court has kept the offence broad. Any act capable of frustrating access to criminal assets can suffice, including hiding cash, and the perpetrator of the predicate offence can launder his own proceeds.³ Italian law reached the second point only with Law No. 186 of 15 December 2014. It introduced the offence of self-laundering (autoriciclaggio, Art. 648-ter.1 of the Italian Criminal Code) with effect from 1 January 2015, punishable by two to eight years of imprisonment and a fine.⁴ Before that date, cross-border cases sometimes showed an asymmetry: a person who could be prosecuted in Lugano for laundering the proceeds of his own Italian offence could not be prosecuted for the same act in Italy. The asymmetry has disappeared, but the difference in sentencing has not. Italian penalties for money laundering (Art. 648-bis c.p.) and for Mafia-type association (Art. 416-bis c.p.) are considerably higher than the Swiss maximum of five years for aggravated money laundering, a contrast that Ticino politicians have repeatedly emphasized.⁵

Notes

1. Swiss Criminal Code of 21 December 1937 (SCC), SR 311.0, Art. 305bis, https://www.droit-bilingue.ch/de-en/3/31/311.0-305bis-372.html. ↩
2. Art. 305bis(1bis) SCC (above), inserted by the Federal Act of 12 December 2014, in force since 1 January 2016 (AS 2015 1389). ↩
3. Federal Supreme Court, BGE 119 IV 59 of 20 January 1993 (hiding drug proceeds of up to CHF 120,000 in a flat as an act capable of frustrating confiscation; Art. 305bis SCC not limited to organized crime), https://www.servat.unibe.ch/dfr/bge/c4119059.html; BGE 120 IV 323 of 21 September 1994 (the perpetrator of the predicate offence can launder his own proceeds), https://www.servat.unibe.ch/dfr/bge/c4120323.html. ↩
4. Codice penale, Art. 648-ter.1, introduced by Legge 15 dicembre 2014, n. 186, in force since 1 January 2015, text at Brocardi, https://www.brocardi.it/codice-penale/libro-secondo/titolo-xiii/capo-ii/ art648ter1.html. ↩
5. Codice penale, Art. 648-bis (four to twelve years' imprisonment and a fine of EUR 5,000 to 25,000), https://www.brocardi.it/codice-penale/libro-secondo/titolo-xiii/capo-ii/art648bis.html; Art. 416-bis (ten to fifteen years for participation, twelve to eighteen years for promoters, leaders and organizers), https://www.brocardi.it/codice-penale/libro-secondo/titolo-v/art416bis.html. On the political argument see "Lotta alla mafia, Pietro Grasso fornisce indicazioni utilissime", laRegione, 8 March 2024, https://www.laregione.ch/cantone/ticino/1739428/servizi. ↩

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.