The second package of 1994: criminal organizations, reporting and confiscation

Supervisory guidance after 1990

The criminal provisions of 1990 did not stand alone. On 7 February 1990 the Financial Action Task Force, created by the G7 summit of 1989 and counting Switzerland among its members, adopted its forty recommendations against money laundering. In 1991 the Federal Banking Commission issued money laundering guidelines that implemented these recommendations for the banks under its supervision.¹ The Commission had already made clear in 1986, after the case of the assets of the former Philippine president Ferdinand Marcos, that it expected banks to take particular care with politically exposed persons. In 1994 it added that a bank which knowingly accepted assets deriving from corruption violated the requirement of the Banking Act that it guarantee irreproachable business conduct (Gewähr für eine einwandfreie Geschäftstätigkeit).² Supervisory law thus moved in parallel with criminal law: the banker who accepted criminal money now risked both a criminal conviction and the loss of the bank's licence or of his own fitness and propriety.

Article 260ter: participation in a criminal organization

The second legislative package answered the gap that the Gelli case and the Mafia investigations had exposed. The Federal Council presented its message on 30 June 1993 (BBl 1993 III 277). The Council of States debated the bill on 9 December 1993 and the National Council on 1 March 1994. In the final votes of 18 March 1994 it was adopted by 43 votes to none in the Council of States and 167 to none in the National Council.³ The Act introduced a new Article 260ter SCC, which punished participation in an organization that kept its structure and membership secret and pursued the purpose of committing crimes of violence or enriching itself by criminal means, as well as support of such an organization. The provision entered into force on 1 August 1994.⁴

In its current version, revised with effect from 1 July 2021 to cover terrorist organizations, Article 260ter(1) SCC provides for a custodial sentence of up to ten years or a monetary penalty for participation in or support of a criminal organization. Paragraph 3 sets a minimum sentence of three years for those who exercise a decisive influence in the organization. Paragraph 5 extends Swiss jurisdiction to acts committed abroad if the organization carries out or intends to carry out its criminal activities wholly or partly in Switzerland.⁵ For Ticino the provision closed the gap that had made Swiss cooperation with Italian anti-Mafia investigations depend on proof of individual drug offences. A Swiss fiduciary or banker who placed his services permanently at the disposal of a Mafia clan could now be prosecuted for supporting a criminal organization even if no individual predicate offence could be linked to a particular transfer.

The new offence also mattered for mutual assistance. Italy had created the offence of Mafia-type association (associazione di tipo mafioso, Art. 416-bis of the Italian Criminal Code) by the Rognoni-La Torre Law of 13 September 1982, enacted after the murders of the deputy Pio La Torre and of General Carlo Alberto dalla Chiesa. The same law introduced the preventive seizure and confiscation of Mafia assets.⁶ Until 1994 an Italian request based only on Article 416-bis raised the question of dual criminality in Switzerland, because Swiss law had no equivalent offence. Swiss courts could grant assistance where the facts also amounted to specific Swiss offences, such as drug trafficking or extortion. A request for coercive measures that described membership of a Mafia clan without such specific acts was harder to execute. Article 260ter SCC removed this obstacle. From August 1994 Mafia membership as described in Italian requests generally corresponded to a Swiss offence, so that Swiss authorities could seize documents and assets on that basis.

Notes

1. Federal Finance Administration, Geldwäscherei (brochure, October 2002), Federal Banking Commission archive, https://finma.ch/FinmaArchiv/ebk/d/archiv/2002/pdf/gw_broschuere_dt.pdf (FATF recommendations of 7 February 1990; Banking Commission money laundering guidelines of 1991). The brochure, 7, also records Switzerland's membership of the FATF. ↩
2. Federal Finance Administration, Geldwäscherei (as above) (Marcos case 1986; statement of 1994 on assets deriving from corruption). ↩
3. Swiss Parliament, Rückblick auf die 44. Legislaturperiode, business 93.058 "Strafbarkeit krimineller Organisation", https://www.parlament.ch/Poly/Rueckblick/D/Retro01/93058.HTM. ↩
4. Art. 260ter SCC, inserted by No. I of the Federal Act of 18 March 1994 (AS 1994 1614; BBl 1993 III 277), history note at https://lawbrary.ch/law/art/STGB-v2023.08-en-art-260.3. The same Act brought Art. 305ter(2) SCC into force on 1 August 1994 (see below). ↩
5. Art. 260ter SCC as amended by the Federal Decree of 25 September 2020, in force since 1 July 2021 (AS 2021 360), at https://lawbrary.ch/law/art/STGB-v2023.08-en-art-260.3 and https://droit-bilingue.ch/en-de/3/31/311.0-260ter-304.html. ↩
6. Art. 416-bis codice penale, "Associazioni di tipo mafioso anche straniere", introduced by art. 1 of legge 13 settembre 1982, n. 646, Brocardi.it, https://www.brocardi.it/codice-penale/libro-secondo/titolo-v/art416bis.html; "Legge Rognoni-La Torre", Italian Wikipedia, https://it.wikipedia.org/wiki/Legge_Rognoni-La_Torre (consulted as a last resort; preventive seizure and confiscation of assets; adoption "accelerat[a] dagli omicidi del deputato Pio La Torre e del generale Carlo Alberto dalla Chiesa"). ↩

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 October 2026.