Seizure, confiscation and compensatory claims

Seizure in the investigation

For the victims of economic crime, the question whether assets can be secured is often more important than the question whether the offender will be convicted. The Criminal Procedure Code gives prosecutors a broad power to seize. Under Article 263 paragraph 1 StPO, objects and assets belonging to an accused person or to a third party may be seized if they are expected to be used as evidence, to be used as security for procedural costs, monetary penalties, fines and compensation, to be returned to persons suffering harm or to be confiscated.¹ In economic cases, the seizure of bank accounts is the most common coercive measure. A Zurich prosecutor can order a bank to block an account and to produce the account documentation in a single order.

The seizure of assets is a provisional measure. Requiring only a reasonable suspicion that the assets are connected with an offence, it may last for years while the investigation continues. The principle of proportionality nevertheless limits it. The longer a seizure lasts, the more concrete the suspicion must become. The affected person may challenge the seizure at any time by way of objection to the Obergericht or, in federal cases, to the Objections Chamber of the Federal Criminal Court. Seizures frequently become the central battlefield of an economic case, because the blocking of accounts may paralyse a business or deprive an individual of the means to live and to pay for a defence. Swiss practice allows the release of funds for living expenses and legal fees on application, subject to the prosecutor’s assessment.

Confiscation and the compensatory claim

The substantive rules on confiscation are contained in Articles 69 to 73 SCC. Article 70 requires the court to order the confiscation of assets that have been acquired through the commission of an offence or that were intended to induce or reward an offence, unless they are to be returned to the injured party. Confiscation is excluded where a third party acquired the assets in ignorance of the grounds for confiscation and provided adequate consideration. The right to order confiscation becomes time-barred after seven years, unless the prosecution of the offence is subject to a longer limitation period. Where the extent of the assets to be confiscated cannot be determined, or only with disproportionate effort, the court may make an estimate.²

Where the assets subject to confiscation are no longer available, the court orders a compensatory claim (Ersatzforderung) of the state in the same amount under Article 71 SCC. The court may waive the claim wholly or partly if it would probably be uncollectible or would seriously hinder the reintegration of the person concerned. To secure the claim, the investigating authority may seize assets of the person concerned, although the seizure confers no preferential right in enforcement proceedings.³ The compensatory claim is the mechanism through which Swiss authorities capture the profits of corporate bribery. In the Alstom, Gunvor, Glencore and Trafigura cases, the bribes had long since been paid and the profits had been absorbed into the companies’ general assets. The compensatory claim allowed the state to recover an equivalent sum without tracing specific funds.

Article 72 SCC adds a special rule for assets under the control of a criminal or terrorist organisation. The court must order the confiscation of all such assets. Where a person participated in or supported the organisation, his assets are presumed to be subject to its control until the contrary is proven.⁴ This reversal of the burden of proof was designed for organised crime but has also been applied in cases involving kleptocratic networks. The confiscation of more than CHF 400 million in the Karimova case rested in part on the characterisation of the “Office” as a criminal organisation.

Victims and the allocation of confiscated assets

Swiss law gives priority to the injured party. Assets that can be identified as belonging to a victim are returned before any confiscation for the benefit of the state. Where the injured party has suffered damage that the offender is unlikely to make good, Article 73 SCC allows the court to award confiscated assets, compensatory claims and fines to the injured party up to the amount of the damage established by a court or by settlement.⁵ The injured party may participate in the criminal proceedings as a private claimant, obtain access to the file and assert civil claims in the criminal process. For foreign victims of fraud committed through Zurich accounts, participation in the Swiss proceedings is often the most efficient way to obtain information about the flow of funds and to secure recovery, although it requires Swiss counsel and a significant investment of time.

The allocation of confiscated funds to the state has become a political issue in corporate bribery cases. When Glencore paid a compensatory claim of USD 150 million to the Swiss Confederation under a summary penalty order of August 2024, the Geneva Social Democrat National Councillor Christian Dandrès submitted a postulate asking the Federal Council to examine how assets from such corruption cases could be directed to projects in the affected regions of the Democratic Republic of the Congo.⁶ The question touches on the relationship between criminal confiscation and the restitution of assets to states of origin, which Switzerland has practised in cases of politically exposed persons since the Marcos, Abacha and Duvalier affairs described in Part F. Its current legal framework is set out in chapter I.V.

Notes

1. StPO, Art. 263 para. 1, https://www.droit-bilingue.ch/de-fr/3/31/312.0-263-267.html. ↩
2. SCC, Art. 70 paras. 1–3 and 5, https://www.droit-bilingue.ch/de-fr/3/31/311.0-70-95.html. ↩
3. SCC, Art. 71 paras. 1–3, https://www.droit-bilingue.ch/de-fr/3/31/311.0-71-96.html. ↩
4. SCC, Art. 72, https://www.droit-bilingue.ch/de-fr/3/31/311.0-72-97.html. The provision was amended with effect from 1 July 2021 in connection with the implementation of the Council of Europe Convention on the Prevention of Terrorism. ↩
5. Art. 73 para. 1 SCC (allocation to the injured party of fines, confiscated assets or their proceeds, compensatory claims and good-behaviour bonds up to the amount of damages set by a court or by settlement), https://www.droit-bilingue.ch/de-fr/3/31/311.0-73-98.html. ↩
6. Office of the Attorney General of Switzerland, media release “Bundesanwaltschaft schliesst Strafuntersuchung gegen Glencore International AG mit Strafbefehl und Einstellungsverfügung ab”, 5 August 2024, https://www.admin.ch/de/nsb?id=101995 (fine of CHF 2 million and compensatory claim of USD 150 million); zentralplus, “Baut Schweiz mit Glencore-Busse bald Schulen im Kongo?”, 26 September 2024, https://www.zentralplus.ch/wirtschaft/baut-schweiz-mit-glencore-bussgeld-bald-schulen-im-kongo-2696692/, on the postulate of Christian Dandrès and the letter of several Congolese non-governmental organisations. ↩

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 September 2025.