The principal offences

Fraud, misappropriation and criminal mismanagement

Swiss economic criminal law has no single offence of “economic crime”. It relies on the general property offences of the Criminal Code, supplemented by special provisions in financial market legislation. The central offence is fraud under Article 146 SCC. A person commits fraud who, with the intention of unlawfully enriching himself or another, deceives someone by misrepresenting or concealing facts, or wilfully reinforces an existing error, in a manner that is arglistig, and thereby causes the deceived person to act to the detriment of his own or another’s property. The penalty is a custodial sentence of up to five years or a monetary penalty. Commercial fraud (gewerbsmässiger Betrug) carries up to ten years.¹

The element of Arglist, usually translated as “deceit” or “artifice”, is the distinctive feature of Swiss fraud. The Federal Supreme Court has developed the doctrine of the victim’s co-responsibility (Opfermitverantwortung), under which a deception is not arglistig if the victim could have uncovered it with a minimum of care. The doctrine has particular relevance for claims by professional investors and banks. A bank that grants a loan without carrying out the checks that its own rules require may find that the borrower’s lies, however blatant, do not amount to fraud. In investment fraud cases involving retail investors, on the other hand, the courts regularly find Arglist where the offender used a structure of lies, false documents or a particular relationship of trust.²

Two further offences are central to the prosecution of misconduct by those who manage the assets of others. Misappropriation (Veruntreuung) under Article 138 SCC covers a person who appropriates a movable thing entrusted to him, or uses entrusted assets unlawfully for his own or another’s benefit, with the intention of unlawful enrichment. The penalty is a custodial sentence of up to five years or a monetary penalty, rising to ten years where the offender acts as a member of an authority, a public official, a guardian, a professional asset manager or in the exercise of a profession, trade or business for which he is authorised by an authority.³ The aggravated form expressly names the professional asset manager, which gives the provision special weight in a financial centre.

Criminal mismanagement (ungetreue Geschäftsbesorgung) under Article 158 SCC complements misappropriation. It applies to a person who, by law, by official mandate or by contract, is entrusted with managing the property of another or supervising such management, and who, in breach of his duties, causes or permits damage to that property. The basic penalty is a custodial sentence of up to three years or a monetary penalty, rising to one to five years where the offender acts with the intention of unlawful enrichment. A second form covers the abuse of a power of representation with intent to enrich.⁴ The offence reaches directors, executive officers, portfolio managers and trustees. It was the principal charge in several of the most prominent Zurich cases, including the Swissair trial and the Vincenz case. Because it requires a breach of duty and a financial loss, it forces courts to examine business decisions in detail. The Swissair acquittals show that Zurich courts give managers considerable latitude where a decision was defensible at the time it was made.

Forgery of documents

The forgery of documents under Article 251 SCC plays a role in Swiss economic criminal law that often surprises foreign practitioners. The offence covers the fabrication of false documents as well as the creation of documents that are genuine as to their author but false as to their content (Falschbeurkundung), provided the document enjoys enhanced credibility. The Federal Supreme Court has recognised such enhanced credibility for commercial accounts kept under the statutory accounting rules.⁵ A false declaration of beneficial ownership thus exposes the client to a charge of forgery, while an employee who knowingly accepts such a declaration may be liable as a participant. In money laundering cases, the charge of forgery frequently accompanies the charge of laundering itself. For international clients, the practical lesson is that documents supplied to a Swiss bank for compliance purposes are treated by Swiss criminal law as more than private paperwork.

Bribery of public officials and private corruption

The Swiss law of bribery was comprehensively modernised in two steps. The first, which entered into force in 2000 in connection with Switzerland’s ratification of the OECD Anti-Bribery Convention, introduced the offences of bribery of Swiss public officials (Article 322ter SCC), acceptance of bribes (Article 322quater), granting and accepting advantages (Articles 322quinquies and 322sexies) and the bribery of foreign public officials (Article 322septies).⁶ Bribery of foreign public officials carries a custodial sentence of up to five years or a monetary penalty. It is also one of the offences for which a company can be held liable directly under Article 102 paragraph 2 SCC, which explains the prominence of foreign bribery in the corporate cases discussed below.

The second step concerned private corruption. Until 2016, bribery in the private sector was an offence under the Federal Act against Unfair Competition and could be prosecuted only on complaint and only where it distorted competition. The revision that entered into force on 1 July 2016 moved private bribery into the Criminal Code as Articles 322octies (active) and 322novies (passive), made it an offence prosecuted ex officio and removed the requirement of a distortion of competition. Only minor cases remain subject to a complaint. The revision also extended the offences of bribing public officials to advantages granted to third parties.⁷ The international background was the corruption scandal around international sports federations with their seat in Switzerland, which had exposed the weakness of the old regime.⁸

For Zurich, private corruption is of practical importance in two settings. The first is procurement and commercial relationships between private companies, including the kickbacks that employees of purchasing departments may demand. The second is the financial sector itself, where payments to employees of banks or asset managers to obtain mandates or to influence investment decisions fall under the new provision. Since private bribery is not listed in Article 24 StPO, such cases generally fall within the jurisdiction of the Zurich prosecution service, typically the Staatsanwaltschaft III.

Money laundering

Money laundering is the economic offence most closely associated with the international image of the Swiss financial centre. Article 305bis SCC punishes any person who carries out an act that is capable of frustrating the identification of the origin, the tracing or the confiscation of assets that he knows or must assume originate from a felony or from an aggravated tax misdemeanour. The basic offence carries a custodial sentence of up to three years or a monetary penalty. In serious cases, in particular where the offender acts as a member of a criminal organisation, a gang or on a commercial basis, the penalty rises to five years, combined with a monetary penalty of up to 500 daily penalty units. The offence also applies where the predicate offence was committed abroad, provided it is also punishable at the place of commission.⁹

The inclusion of aggravated tax misdemeanours as predicate offences was one of the most significant changes in the history of the provision. Under paragraph 1bis, an aggravated tax misdemeanour is defined as certain qualified forms of tax fraud where the evaded taxes exceed CHF 300,000 per tax period. The provision was introduced with effect from 1 January 2016 in implementation of the revised FATF Recommendations of 2012.¹⁰ For Zurich banks, whose history of accepting undeclared foreign assets is traced in Parts F and G, the change completed the transition to a regime in which the proceeds of serious tax offences can no longer be accepted without criminal risk.

Money laundering is also the offence on which most corporate prosecutions have turned. It can be committed by omission, where a bank employee with a duty to act fails to report or block suspicious assets, as well as with dolus eventualis, where the offender considers it possible that the assets are criminal and accepts that possibility. The case law on these points shapes the compliance practice of every financial intermediary in Zurich. Its supervisory counterpart, the duty to report under Article 9 of the Anti-Money Laundering Act, is treated in chapter I.III.

Market abuse and financial market offences

Insider dealing and market manipulation are criminal offences under the Financial Market Infrastructure Act and are subject to exclusive federal jurisdiction. Their prosecution by the OAG and their parallel treatment as supervisory offences by FINMA are described in the chapter on SIX and the Swiss capital market in Part H.¹¹ It suffices to note here that these offences follow the same federal procedure as money laundering and corruption cases, with evidence that usually comes from the market surveillance of SIX and FINMA. The large number of financial market offences outside the Criminal Code, ranging from unauthorised banking activities to breaches of the disclosure rules for significant shareholdings, completes the picture. Most of these are prosecuted by the FDF under the administrative criminal law described above.

Notes

1. SCC, Art. 146 paras. 1–2, https://www.droit-bilingue.ch/de-fr/3/31/311.0-146-180.html. ↩
2. BGE 142 IV 153 of 8 March 2016, https://servat.unibe.ch/dfr/bge/c4142153.html: Arglist is excluded where the deceived person could have avoided the error with a minimum of care (“mit einem Mindestmass an Aufmerksamkeit”), which requires disregard of the most basic precautions, and the court confirms the settled doctrine of the victim’s co-responsibility. ↩
3. SCC, Art. 138 paras. 1–2, https://www.droit-bilingue.ch/de-fr/3/31/311.0-138-169.html. ↩
4. SCC, Art. 158 paras. 1–2, https://www.droit-bilingue.ch/de-fr/3/31/311.0-158-194.html. Where the offence is committed to the detriment of a relative or family member, it is prosecuted only on complaint (para. 3). ↩
5. Swiss Criminal Code (SR 311.0), Art. 251 para. 1, bilingual edition, https://www.droit-bilingue.ch/de-fr/3/31/311.0-251-293.html (“eine rechtlich erhebliche Tatsache unrichtig beurkundet oder beurkunden lässt”); BGE 123 IV 61 of 14 April 1997, consid. 5b, https://servat.unibe.ch/dfr/bge/c4123061.html, on false entries in the accounts of a company limited by shares as Falschbeurkundung. ↩
6. Federal Office of Justice, “Korruption (OECD-Konvention)”, https://www.bj.admin.ch/de/korruption-oecd-konvention: “Der Bundesrat setzt die schärferen Strafbestimmungen gegen Korruption auf den 1. Mai 2000 in Kraft”, and the OECD Convention was ratified on 31 May 2000. ↩
7. Swiss Federal Council, news release “Privatbestechung wird wirksamer bekämpft”, 20 April 2016, https://www.admin.ch/de/nsb?id=61415. ↩
8. SWI swissinfo.ch, “‘Lex FIFA’ gets thumbs up”, 10 September 2015, https://www.swissinfo.ch/eng/business/lex-fifa_-lex-fifa-gets-the-thumbs-up/41654166, reporting Parliament’s approval of the amendments on private bribery, which were aimed at FIFA and the other international sports federations headquartered in Switzerland and became known as the “Lex FIFA”. ↩
9. SCC, Art. 305bis, German and English texts on droit-bilingue.ch, https://www.droit-bilingue.ch/de-en/3/31/311.0-305bis-372.html. ↩
10. Art. 305bis no. 1bis SCC, inserted by no. I 4 of the Federal Act of 12 December 2014 implementing the 2012 revised FATF Recommendations, in force since 1 January 2016 (AS 2015 1389; BBl 2014 605), with the threshold of CHF 300,000 per tax period, https://www.droit-bilingue.ch/de-en/3/31/311.0-305bis-372.html. ↩
11. Financial Market Infrastructure Act (FinfraG, SR 958.1), Arts. 154 (“Ausnützen von Insiderinformationen”), 155 (“Kursmanipulation”) and 156 para. 1 (“Verfolgung und Beurteilung der Handlungen nach den Artikeln 154 und 155 unterstehen der Bundesgerichtsbarkeit.”), bilingual edition, https://www.droit-bilingue.ch/de-fr/9/95/958.1-156-165.html. The provisions are discussed in detail in chapter H.I of this book. ↩

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.