{"id":36264,"date":"2025-04-02T10:25:27","date_gmt":"2025-04-02T10:25:27","guid":{"rendered":"https:\/\/www.cdr-news.com\/cdr-essential-intelligence\/fraud-asset-tracing-recovery\/\/"},"modified":"2025-04-04T13:40:19","modified_gmt":"2025-04-04T13:40:19","slug":"switzerland","status":"publish","type":"product","link":"https:\/\/www.cdr-news.com\/cdr-essential-intelligence\/fraud-asset-tracing-recovery\/switzerland\/","title":{"rendered":"Switzerland"},"content":{"rendered":"

I\u00a0 Executive summary<\/strong><\/h2>\n

Switzerland is a small but, nevertheless, very important banking country and commodity trading hub.\u00a0 It is thus not surprising that Switzerland is also a prominent jurisdiction for national and transnational asset recovery disputes.\u00a0 Swiss law enforcement authorities are committed to investigate money laundering, and to assist crime victims in the recovery of criminally obtained assets.<\/p>\n

To achieve this goal, Swiss law recognises very effective criminal and civil law mechanisms for the seizure and confiscation of illegally obtained assets, which are applied both in domestic and international cases.\u00a0 The advantage of the criminal law approach is that assets obtained in violation of criminal law can be seized by the investigating authorities ex officio<\/em> through coercive measures, not only from the perpetrator\/direct beneficiary but also along the paper trail from third parties who benefited from the offence, and can be confiscated for the privileged satisfaction of the victim.\u00a0 Such coercive measures are not available under civil law.\u00a0 So-called \u201ccivil attachment proceedings\u201d are therefore only successful if the claimant has clear indications of where the illegally obtained assets are located.\u00a0 The advantage of the civil law approach, however, can be that the claimant remains in control of the proceedings, and out-of-court settlements with the other party regarding the type and scope of compensation are therefore more likely than in criminal proceedings.<\/p>\n

II\u00a0 Important legal framework and statutory underpinnings to fraud, asset tracing and recovery schemes<\/strong><\/h2>\n
    \n
  1. Legal background: <\/strong>The Swiss legal system belongs to the tradition of civil law.\u00a0 Thus, its primary legal framework is established in written statutes.\u00a0 Whilst the common law rule of binding precedent is not present in Switzerland, judicial decisions do play an important role within the legal framework.\u00a0 Judicial opinions and interpretations of the law that have been confirmed in multiple rulings over time may indeed be viewed as legal precedent.\u00a0 In addition, the view of legal scholars is often taken into consideration in the application and interpretation of the codified law and established precedents. Whilst the Swiss procedural rules are regulated at a federal level, the cantons retain the autonomy to organise their judiciary.\u00a0 They are free in the organisation of their courts, but must fulfil the requirements set forth within federal law.\u00a0 Cantons are required to provide courts of two instances \u2013 a court of first instance as well as a court of appeal \u2013 within their judiciary system, and are further granted the power to establish specialised courts, e.g. commercial courts that may serve as the court of first and sole instance for commercial disputes in that canton.\u00a0 The cantons Z\u00fcrich, Bern, St. Gallen and Aargau have enacted commercial courts.\u00a0 Additionally, many cantons have other specialised courts for labour and tenant disputes. The cantons further remain autonomous in how they choose to compose their courts.\u00a0 Switzerland does not have a jury system; any remnants of a similar system within the cantons ceased upon the introduction of the Federal Criminal Procedure Code (CPC) of 2011. Disputes that pertain to fraud, asset tracing and recovery may be addressed either in civil litigation, i.e. in civil courts or, in the cantons that have established specialised commercial courts, in said commercial courts (see \u201cCivil litigation\u201d below).\u00a0 These disputes may further be addressed within criminal proceedings that may take place at either the cantonal or federal courts (see \u201cCriminal proceedings\u201d below).\u00a0 The civil and the criminal route may be combined in parallel proceedings (see \u201cParallel proceedings\u201d below).<\/li>\n
  2. Civil litigation<\/strong>\n
      \n
    1. Civil proceedings in general: <\/em><\/strong>Civil litigants in Switzerland may enact civil tort law, which allows the plaintiff to seek recovery or compensation of the damages that he or she has incurred through unlawful and, in particular, criminal acts of the defendant.\u00a0 The plaintiff is entitled to compensation of its negative interest, i.e. to be put back in the situation in which it would have found itself if the loss-causing event had not occurred. To begin Swiss civil proceedings, a claimant must normally initiate a pre-suit conciliation hearing.\u00a0 The aim of such pre-suit conciliation hearing is to reach an agreement between the parties.\u00a0 If the parties cannot agree, the claimant may file a written claim with the courts. Within Swiss civil proceedings there is the option for the defendant to extend the liability by bringing the claim against them to a third party by \u201cnotice of litigation\u201d.\u00a0 Whilst there are no class action suits in Switzerland, there is the possibility of joinder claims that are admissible if two or more claims subjectable to the same type of proceedings are in the same matter and raise a common question of either law or fact. The parties are free, within the submission of their briefs, to evaluate what they deem to be relevant evidence and facts of the case, and are not bound by any general pre-trial disclosure regulations.\u00a0 The claimant filing the suit is expected to submit all the facts and evidence supporting his or her claim from the beginning of the proceedings.\u00a0 Accordingly, the defendant will then be given the opportunity to either refute the claimant\u2019s facts or submit his or her own facts and evidence.\u00a0 Both parties must submit all evidence available to them without delay, i.e. generally with their initial briefs.\u00a0 Each party must submit proof to support the facts of his or her claim or defence.\u00a0 The courts are given broad discretion in the evaluation of the evidence submitted and will declare which evidence is admissible in the form of a procedural order. Witnesses and experts, if they are called to provide testimony, are not subjected to cross-examination, but the parties have a right to make statements on the questions put forth by the court and may put forth their own questions.\u00a0 Privately commissioned expert opinions as well as affidavits do not qualify as evidence under the Swiss Civil Procedure Code (CivPC); however, since the courts may freely assess the evidence submitted, they are often not rejected entirely but rather merely given the same influence as that of a party pleading. Within Swiss civil litigation, persons who are called upon to provide testimony or evidence within civil proceedings have a duty to cooperate and provide testimony, unless they are prohibited from doing so by confidentiality obligations (professions with statutory confidentiality, e.g. doctors, lawyers) or may refuse due to the threat of self-incrimination or their relationship with one of the parties to the proceedings.\u00a0 Contacting and preparing witnesses is generally not allowed within Swiss litigation proceedings. Whilst Switzerland does not have the principle of contempt of court per se<\/em>, indifference or lack of cooperation with the courts may lead to unfavourable conjecture with the court. Before the court reaches its ruling, the parties may give a final opening to provide statements on the evidence submitted to the courts.\u00a0 In most civil proceedings, the courts are bound by the principle of party presentation, and may not go beyond the facts brought forth by the parties. Within the final judgment, the court decides on the costs of the proceedings and the obligation to bear such costs.\u00a0 Under Swiss civil procedure law, the party that does not prevail before the court must bear the costs of the proceedings and the legal cost of the prevailing party as set by the court.\u00a0 Punitive damages as such are not awarded or recognised within Swiss law.<\/li>\n
    2. Injunctive relief\/attachment proceedings: <\/em><\/strong>Beyond the ordinary procedures, Swiss civil law additionally provides for injunctive and interim relief within civil litigation and allows for the enforcement of a court ruling in favour of the claimant. The remedy that is utilised the most is so-called \u201cattachment proceedings\u201d.\u00a0 In order for a petition of attachment to be granted by the court, the petitioner must fulfil the following three main requisites:\n
        \n
      1. firstly, the petitioner must have a prima facie <\/em>claim, i.e. the petitioner must credibly show that such claim exists;<\/li>\n
      2. secondly, the petitioner must identify assets which are located within Switzerland; and<\/li>\n
      3. lastly, the petitioner bases the request on valid grounds meriting an attachment. In most cases, petitioners base their petition of attachment on grounds of the defendant\u2019s lack of a domicile or registered office in Switzerland.\u00a0 A petitioner may further base the petition on a ruling that was passed in the petitioner\u2019s favour against the defendant or on a certificate of unpaid debt from the defendant.If the petition is filed on the grounds that the defendant lacks a domicile or registered office in Switzerland, the petitioner must show a sufficient nexus between the claim put forth and Switzerland. The requirement of a nexus to Switzerland is usually fulfilled when one of the parties has its domicile in Switzerland, the place of execution or performance of the contract is in Switzerland or, in the case of a tort claim, the unlawful act took place in Switzerland or the harmful result of that act transpired in Switzerland.The Swiss attachment degree is an in rem <\/em>order and may only seize property located within Switzerland that was identified by the petitioner.\u00a0 The attachment order may extend to claims that the defendant holds against a third party, provided that said third party also has its domicile or registered office within Switzerland.<\/li>\n<\/ol>\n<\/li>\n
      4. Criminal proceedings<\/strong>\n
          \n
        1. Seizure and forfeiture of illegal proceeds: <\/em><\/strong>In accordance with art. 70 para. 1 of the Swiss Criminal Code (SCC), the court orders the forfeiture of assets that have been acquired through the commission of a criminal offence, unless the assets are to be passed on to the person harmed for the purpose of restoring the prior lawful position.\u00a0 Thus, in case of fraud or other criminal offences against financial interests, the forfeiture operates in favour of the victim. The forfeiture extends to assets that have a natural and adequate causal link to the criminal offence.\u00a0 However, they do not necessarily have to be the direct and immediate consequence of the offence.\u00a0 For example, income from legal transactions that have been concluded based on bribery can also be forfeited.\u00a0 Also, it is undisputed that surrogates of assets acquired through a criminal offence can be forfeited as well. It is an issue of controversy whether the amount to be recovered in forfeiture and compensation claims should be determined on a net or gross basis.\u00a0 For generally prohibited activities (e.g. drug trafficking), gross calculations apply, whereas for acts that are permitted in principle but are only tortious in specific instances (e.g. a contract that has been obtained based on corruption), net calculations are used, i.e. the production costs are deducted. Law enforcement authorities may order the provisional seizure of assets if they are likely to be returned to the persons harmed, to be forfeited or to serve to enforce the compensation claim (art. 263 para. 1 lit.<\/em> c, d and e CPC).\u00a0 The provisional seizure of assets, which may be requested by victims of fraud or other criminal activities, is regularly a very effective and efficient tool for recovering assets.\u00a0 In particular, it is noteworthy that in criminal proceedings only, any assets resulting directly or indirectly (surrogates) from a criminal offence will be used to compensate the person harmed to the exclusion of all other creditors pursuing the civil route.\u00a0 These preferential rights should be kept in mind when deciding on whether to seek recovery by way of criminal or civil proceedings. If the assets which are subject to forfeiture no longer exist, e.g. because they have been consumed or disposed of, the court will order a compensation claim for the same amount (art. 71 para. 1 SCC), which can be awarded to the person harmed (art. 73 SCC).\u00a0 The compensation claim may be enforced in any assets, including assets which may have been legally acquired.\u00a0 However, the seizure of unrelated assets does not accord the state preferential rights in the enforcement of the equivalent claim (art. 263 para. 1 lit. e CPC). As forfeiture and compensation claims involve objective measures and not penalties, these sanctions are applied regardless of the criminal liability or conviction of a particular person; provided, however, that all objective and subjective elements of the underlying offence can be proven. Another efficient way to obtain a de facto <\/em>freezing of assets consists of giving a reasoned written notice to the bank where the assets are deposited, indicating the risk to the bank of being held criminally and civilly liable in the event that it allows the assets to be withdrawn and\/or transferred.\u00a0 In view of the fact that Swiss law criminalises money laundering (see art. 305bis<\/em> SCC), the bank faces not only a civil but also a criminal liability risk in this regard.\u00a0 This will usually prompt it to comply with the freezing request.\u00a0 Furthermore, in cases of suspicion of money laundering or another felony, the bank must notify the Money Laundering Reporting Office (MROS), which in turn involves the criminal authorities if a reasonable suspicion exists.\u00a0 Thus, the victim\u2019s interest in recovering his or her assets is also protected by the criminal provision of money laundering. In addition to the freezing of assets, victims of fraud and other financial misconduct can request that the prosecutor orders the seizure of an accused\u2019s or a third party\u2019s bank documents in order to be able to establish the paper trail.\u00a0 The prosecutor will order such seizure if the bank documents are expected to be relevant as evidence for proving the crime or the existence of criminal proceeds (art. 263 para. 1 lit.<\/em> a CPC). It is noteworthy that in criminal proceedings, the state attorney will ex officio<\/em> establish the relevant facts and, in particular, seek and freeze criminally acquired assets in favour of the person harmed regardless of whether these assets are still held by the accused or have meanwhile been transferred to a third party (in rem<\/em> forfeiture).\u00a0 In contrast, in civil proceedings the burden of proof lies with the plaintiff and a civil attachment requires that the plaintiff establishes a prima facie<\/em> claim and clearly indicates where the assets to be attached are located (no search arrest).\u00a0 If the assets are no longer there, e.g. in the bank account of the offender, the attachment will fail without the plaintiff being informed as to whether and where the assets have been transferred.\u00a0 This should also be kept in mind when deciding on whether to take the criminal or civil route.<\/li>\n
        2. Pursuing civil compensation claims in criminal proceedings: <\/em><\/strong>Under Swiss law, victims of fraud and other financial offences have the possibility to assert their civil claims in the course of the criminal proceedings conducted against the accused (so-called \u201cadhesion claims\u201d; see art. 122 para. 1 CPC).\u00a0 They are thus not obliged to bring a separate civil action, but shall be spared the burden of conducting two separate proceedings. In practice, these adhesion claims are very common, especially as the state attorney establishes the facts ex officio<\/em> in criminal proceedings, whereas in civil proceedings the parties have to investigate and present the facts. In this context, it is important to note that the CPC differentiates between the person suffering harm and the so-called \u201cprivate claimant\u201d.\u00a0 The person suffering harm is defined as either the person whose rights have been directly violated by the offence (art. 115 para. 1 CPC) or the person entitled to file a criminal complaint (art. 115 para. 2 CPC). The private claimant is defined as a person suffering harm who expressly declares that he or she wishes to participate in the criminal proceedings as a criminal and\/or civil claimant (art. 118 para. 1 CPC).\u00a0 The role of a private claimant therefore requires explicit confirmation that he or she wishes to act either as a criminal or civil claimant, or both, within the proceedings, whilst the role of a person suffering harm is granted ex lege<\/em>. In the latter case, the person suffering harm may do either or both of the following (art. 119 para. 2 CPC):\n
            \n
          1. request the prosecution and punishment of the person responsible for the offence (a criminal complaint); and\/or<\/li>\n
          2. file private law claims based on the offence (a civil claim).<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n

            The degree of participation the person suffering harm wishes to take within the proceedings is at his or her discretion.\u00a0 He or she may further extend his or her participation, e.g. from that of a solely civil claimant to that of a criminal and civil claimant, or vice versa<\/em>, within the course of the proceedings. The person suffering harm who declares that he or she wishes to join the proceedings as a private claimant is deemed an official party to the proceedings alongside the accused, and, once the stage of the main hearings have begun, the public prosecutor (art. 104 para. 1 CPC). The private claimant therefore enjoys all rights provided to a party within criminal proceedings.\u00a0 These include, but are not limited to, the right to be heard and inspect the files (art. 107 CPC), the right to file submissions to the prosecutor and\/or the court (arts 109 and 346 CPC), the right to appoint legal counsel (art. 127 CPC), the right to participate in the taking of evidence (art. 147 CPC) and the right to appeal (art. 382 CPC).<\/p>\n

            Civil claims which are filed in the course of the criminal proceedings are subject to special procedural rules: with the declaration of the person suffering harm to participate in the criminal proceedings as a civil claimant, the civil claim becomes pending as of that point.\u00a0 The quantification and statement of the grounds on which the civil claims rely must be specified, at the latest, prior to the court hearing within the deadline set by the court (art. 123 para. 2 CPC).\u00a0 However, in a recent judgment, however, the Federal Supreme Court explicitly left the question open whether and when the conclusions of the civil claim must be quantified and reasoned in order to interrupt the limitation period.\u00a0 Thus, the statute of limitations must be kept in mind, especially in the case of long-lasting criminal proceedings.<\/p>\n

            The criminal court\u2019s jurisdiction over the civil claims is established by its jurisdiction over the criminal proceedings.\u00a0 The prayers for relief which the private claimant may submit have their basis in civil law and would, without a connection to the criminal proceedings, be customarily submitted to civil courts.<\/p>\n

            The criminal court decides on pending civil claims in the event that it:<\/p>\n

              \n
            • convicts the accused; or<\/li>\n
            • acquits the accused and the court is in a position to make a decision (art. 126 para. 1 CPC).<\/li>\n<\/ul>\n

              However, the civil claim filed in the criminal case will be referred to separate civil proceedings in the following circumstances (art. 126 para. 2 CPC):<\/p>\n

                \n
              • the criminal proceedings are abandoned;<\/li>\n
              • the criminal proceedings are concluded by means of a summary penalty order procedure;<\/li>\n
              • the private claimant has failed to justify or quantify the claim sufficiently;<\/li>\n
              • the private claimant has failed to lodge a security in respect of the claim; or<\/li>\n
              • the accused has been acquitted but the court is not in a position to make a decision on the civil claim.<\/li>\n<\/ul>\n

                If a full assessment of the civil claim would cause unreasonable expense and inconvenience to the criminal court, it may make a decision over whether the merits of the civil claim are given, and refer it to civil proceedings for quantification (art. 126 para. 3 CPC).<\/p>\n

                  \n
                1. Enforcement of foreign judgments: <\/strong>According to Swiss law, foreign judgments or orders are required to be recognised and affirmed to be enforceable by a Swiss court under exequatur proceedings before they may be enforced in Switzerland. The requirements for the recognition and enforcement of foreign judgments are regulated within the Federal Act on Private International Law (PILA; see arts 25\u201327).\u00a0 Switzerland further has ratified the Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters of 30 October 2007 (Lugano Convention).\u00a0 Art. 32 of the Lugano Convention defines judgment as \u201cany judgment given by a court or tribunal of a State bound by this Convention, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court<\/em>\u201d.\u00a0 Subsequently, interim orders of another court, e.g. worldwide freezing orders, are included within the definition of a judgment according to the Lugano Convention and thus may be recognised and enforced within Switzerland. The Federal Supreme Court has opted this view, but declared that the defendant must be given the opportunity to seek the discharge or adaption of the freezing order. A foreign judgment may be declared enforceable based on the Lugano Convention if the judgment is deemed enforceable within the state of the judgment\u2019s origin, and if the following documents set out in art. 53 et seqq<\/em>. of the Lugano Convention are submitted:\n
                    \n
                  • a copy of the judgment that meets the conditions necessary to establish its authenticity;<\/li>\n
                  • a certificate issued by the court or the competent authority where the judgment was given; and<\/li>\n
                  • a certified translation of the aforementioned documents.<\/li>\n<\/ul>\n<\/li>\n<\/ol>\n
                      \n
                    1. Outcome of legal action: <\/strong>Within civil litigation, if successful, the claimant acquires a settlement or judgment in his or her favour.\u00a0 If the defendant\u2019s assets have been successfully attached, the claimant may then pursue enforcement action against those assets within the scope of the Federal Act on Debt Collection and Bankruptcy. In the course of criminal proceedings, multiple results may be possible.\u00a0 If the accused has accepted responsibility for the offence in the preliminary proceedings or if his or her responsibility has otherwise been satisfactorily established, the public prosecutor often issues a summary penalty order.\u00a0 In this case, the public prosecutor may decide on the civil claim, if the accused recognised the civil claims or if their assessment is possible without further evidence and the amount does not exceed CHF 30,000.\u00a0 If the amount is over CHF 30,000 \u2013 and the accused has accepted the civil claims of the private claimant \u2013 this will be recorded in the summary penalty order.\u00a0 Otherwise, the claims are referred to civil proceedings. The proceedings may further be concluded through simplified proceedings in which the accused is required to acknowledge his or her unlawful conduct as well as, if only in principle, the civil claims in exchange for a milder sentence. Finally, criminal proceedings may be conducted through an ordinary trial procedure.\u00a0 In this instance, the criminal court will either decide on pending civil claims or refer them to civil proceedings.\u00a0 In addition, the court or the prosecution may order the restitution of the proceeds of the crime to the person suffering harm, the forfeiture or a compensation claim.<\/li>\n<\/ol>\n

                      III\u00a0 Case triage: main stages of fraud, asset tracing, and recovery cases<\/strong><\/h2>\n
                        \n
                      1. Preliminary steps: <\/strong>When mapping out the legal strategy, it is of course essential to have a clear understanding of all of the facts available and keep the objectives of the client in the centre of focus.\u00a0 This includes, in particular, establishing whether multi-jurisdictional efforts need to be made and, if so, coordinating the action to be taken with the client\u2019s legal counsel in other jurisdictions to establish the most effective legal strategy. Strategic considerations will often begin by determining in which jurisdictions recoverable assets are located and what measures would be required in the respective jurisdictions to seize and forfeit said assets, or to assist in the proceedings in other jurisdictions where there are recoverable assets.\u00a0 For example, if the defendant holds assets mainly in Switzerland, a priority could be made towards filing for interim or injunctive relief, with a potential request for an attachment order for relevant assets. However, if substantial assets are held abroad in one or various jurisdictions, the focus would be on having any judgments pertaining to assets of the defendant, e.g. a worldwide freezing order, recognised and enforced in Switzerland.<\/li>\n
                      2. Legal action in Switzerland: <\/strong>If it is established that fraud assets are located in Switzerland, and thus it is the most prudent decision to pursue legal action in Switzerland, the next step is to establish which steps are the most efficient in order to achieve the required results. When initiating civil attachment proceedings, it is important to keep in mind that the successful attachment of the defendant\u2019s assets may establish Swiss jurisdiction within civil proceedings.\u00a0 However, the claimant is free to prosecute the attachment in another jurisdiction.\u00a0 Thus, if it would be more prudent to file claims against the defendant in another jurisdiction, the plaintiff should be ready to file such claim within the timeframe that Swiss law prescribes for the timely prosecution of an attachment order. Where the claimant has different options as to where to litigate his or her claim, the unique benefits and disadvantages of each legal system available should be weighed to establish under which jurisdiction the claimant would have the best procedural options at his or her disposal. As explained above, the claimant may further consider taking the necessary steps to initiate criminal proceedings if the necessary requirements for criminal procedure are met.\u00a0 Key requirements are that sufficient evidence is available in order for the public prosecutor to open a case, and that Swiss jurisdiction can be established.\u00a0 The claimant should thus ensure that he or she has sufficient evidence to back his or her claim and\/or suspicions, and especially enough evidence to convince the prosecuting authorities. If the claimant is able to gather the sufficient amount of evidence and the public prosecutor consequently opens criminal proceedings, the claimant then has the benefit of the powers given to the criminal prosecution to compel the disclosure of information and documents and to seize or freeze assets.\u00a0 These benefits are accompanied by the disadvantage that during criminal proceedings, although the claimant may have the role of a party, he or she shall not have any control over the timeframe or decisions made within the criminal proceedings.<\/li>\n<\/ol>\n

                        IV\u00a0 Parallel proceedings: a combined civil and criminal approach<\/strong><\/h2>\n

                        As stated above in section I, Swiss law allows for parallel criminal and civil proceedings in the same matter.<\/p>\n

                        The specific case at hand should determine whether victims of fraud and other financial misconduct shall file a criminal complaint or bring a civil action, or both.\u00a0 The question as to whether a criminal complaint shall be filed is often dependent on the amount of information or evidence available to the plaintiff prior to the commencement of civil proceedings.\u00a0 In cases of lack of evidence, criminal proceedings can assist the plaintiff in obtaining disclosure of valuable information for his or her claim, such as bank documents, as well as the freezing of assets.<\/p>\n

                        Where a criminal complaint is filed, it has to be assessed whether it is prudent not only to participate in the criminal proceedings as a criminal complainant, but also to assert civil claims in the course of the criminal proceedings instead of bringing a separate civil action.\u00a0 In this context, it is important to note that filing civil claims within criminal proceedings invokes lis pendens <\/em>and thus would prevent the plaintiff from filing his or her claims in separate civil proceedings.<\/p>\n

                        Pursuing a combined civil and criminal approach may be advisable in cases where the determination of the civil claim and\/or its quantification proves to be complex and can thus be better resolved through civil litigation.\u00a0 However, there may also be cases where criminal proceedings are sufficient to trace and ensure the recovery of the assets.\u00a0 This is especially the case where assets have been provisionally seized by the prosecution in order to be returned to the injured person or to serve to enforce the compensation claim awarded to the injured person.<\/p>\n

                        V\u00a0 Key challenges<\/strong><\/h2>\n

                        As mentioned above, certain challenges may arise when pursuing claims within Swiss civil proceedings.\u00a0 In particular, there is no cross-examination of witnesses within proceedings, nor is there the principle of general discovery or disclosure prior to proceedings.\u00a0 Within pending proceedings, a civil court may order the defendant or third parties to disclose specific documents relevant to the case, but this remains an exception.\u00a0 However, if a party requests the opposing side to produce a document, non-compliance with such request may lead to an unfavourable inference by the court.<\/p>\n

                        Another limitation within civil proceedings in Switzerland is that any attachment orders issued within Switzerland are of an in rem<\/em> nature, with the consequence that only assets within Swiss territory may be seized or frozen.<\/p>\n

                        On the other hand, and as stated above, worldwide freezing orders may be recognised under the Lugano Convention in Switzerland.\u00a0 Interim or injunctive relief in Switzerland, however, does not grant the same provisions to the claimant as such foreign orders.\u00a0 A claimant who seeks recognition in Switzerland will most likely pursue a declaration of bare enforceability from a court as the sole remedy.<\/p>\n

                        In sum, if the possibility is given to litigate the claim under a further jurisdiction, the legal mechanisms provided to the claimant in said jurisdiction should be evaluated to determine whether they may be preferable to the claimant than those provided for in Switzerland.<\/p>\n

                        That being said, many of the hindrances within civil proceedings may be alleviated through pursuing claims within criminal proceedings.\u00a0 Within criminal proceedings, the injured party or plaintiff is far more likely to be able to have the defendant or third parties, e.g. the defendant\u2019s bank, forced to disclose information in his or her favour and have assets traced and confiscated to serve as his or her compensation.<\/p>\n

                        VI\u00a0 Cross-jurisdictional mechanisms: issues and solutions in recent times<\/strong><\/h2>\n

                        Large-scale fraud regularly operates on an international level.\u00a0 Thus, asset tracing and recovery often needs to be conducted within a multi-jurisdictional context.<\/p>\n

                        As a caveat, practitioners should first take note of the blocking statute of art. 271 SCC.\u00a0 This criminal law provision prohibits the commission of acts on behalf of a foreign state which, from a Swiss perspective, would fall within the competence of a public official.\u00a0 Thus, the collection of evidence for foreign proceedings, to the extent it is characterised as an official act under Swiss law, would be deemed unlawful and in violation of art. 271 SCC.<\/p>\n

                        This applies in particular to any processes in relation to the serving of documents and the taking of witness interviews or statements, but also to the gathering of information and evidence for, or upon request of, a foreign authority.\u00a0 In contrast, the prohibition does not apply to the voluntary production of evidence in foreign proceedings which a party has in its possession or control, where such production constitutes a purely procedural act of such party.<\/p>\n

                        Finally, based on the respective application, the competent federal departments may grant an exception to art. 271 SCC and allow direct cooperation with a foreign authority if it is deemed in the interest of the applicant.\u00a0 Such authorisations have been granted, e.g. in order to allow Swiss banks to cooperate in the US Department of Justice programme to settle the tax dispute between the Swiss banks and the USA.<\/p>\n

                        In civil proceedings, cross-jurisdictional judicial assistance \u2013 in particular, serving persons with judicial documents and the obtainment of evidence within foreign jurisdictions \u2013 is regulated through the titular Hague Conventions.\u00a0 The Convention on Civil Procedure of 1 March 1954, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965, and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970 are particularly noteworthy.\u00a0 The same procedure and regulations derived from the conventions are applicable when foreign proceedings require Swiss assistance.\u00a0 For the recognition and enforcement of foreign judgments, see section I above.<\/p>\n

                        As for criminal proceedings, any international coordination or cooperation needed is regulated within the unilateral Federal Act on International Mutual Assistance in Criminal Matters.\u00a0 In addition, as is the case in civil matters, there are various bilateral and multilateral treaties, such as the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959.\u00a0 The main goal of such international cooperation is usually the gathering of information from, or the freezing and restitution of illegally acquired assets held by, Swiss banks.<\/p>\n

                        In addition, in the case of so-called \u201cfailed states\u201d, the Federal Act on the Freezing and the Restitution of Illicit Assets held by Foreign Politically Exposed Persons allows the precautionary freezing and repatriation of illicitly acquired assets even where, due to the total or substantial collapse of the judicial system of the relevant state, the ordinary channels of mutual assistance in criminal matters are not successful.<\/p>\n

                        VII\u00a0 Using technology to aid asset recovery<\/strong><\/h2>\n

                        The steady advancement of technology comes with the advancement and adaptation of the tactics used by fraudsters.\u00a0 With the ever-increasing amount of data being stored digitally, this simultaneously allows for potential data breaches, giving fraudsters potential access to bank accounts, digital currency, electronic devices, or even personal information.<\/p>\n

                        This has led to more specialised approaches within law enforcement and increased security within the private sector.\u00a0 Banks, in particular, through necessity, have been required to improve their security technologies to safeguard their customers from fraud.\u00a0 Artificial intelligence may also be used by banks to flag unusual patterns in transactions and block transfers.\u00a0 In general terms, however, the improvement in technology has increased the difficulty in tracing unlawfully acquired assets, and the engagement of companies specialising in international asset recovery has become more commonplace.<\/p>\n

                        In law enforcement, the Swiss Federal Police have established specialised cybercrime divisions, with certain cantonal police departments (e.g. Z\u00fcrich) following suit.\u00a0 On an international scale, cooperation in the fight against cybercrime is further aided through the Convention on Cybercrime (the Budapest Convention) and the coordination channels of the European Union Agency for Criminal Justice Cooperation (Eurojust).<\/p>\n

                        VIII\u00a0 Highlighting the influence of digital currencies: is this a game changer?<\/strong><\/h2>\n

                        Cryptocurrency is not a game changer; it is widely accepted that cryptocurrency can be seized and confiscated, pursuant to art. 263 para. 1 CPC in conjunction with art. 70 SCC, although it does not represent a physical object but rather encrypted, machine-readable information, i.e. data.\u00a0 The term \u201cassets\u201d as used in art. 70 SCC is to be interpreted broadly and includes non-physical objects such as claims or other rights.\u00a0 Data constitute confiscatable assets if they can be sold for a consideration, which is the case with cryptocurrency.\u00a0 Thus, cryptocurrency is in principle a suitable object for seizure and confiscation in criminal proceedings.<\/p>\n

                        However, the seizure of cryptocurrency raises a variety of practical problems.\u00a0 First of all, the criminal authorities need access to the cryptographic key in order to access the cryptocurrency.\u00a0 Second, it is also necessary to gain access to the password-protected wallet.\u00a0 The discovery of a wallet alone does not guarantee power of disposal over cryptocurrency.<\/p>\n

                        In addition, it is possible that the person concerned does not store the cryptocurrency himself, but has it managed in a special web wallet by a commercial service provider.\u00a0 In this case, the difficulty lies in the fact that the private keys, which enable the power of disposal over the assets, are not stored with the accused, but with a provider.<\/p>\n

                        Another challenge is that after gaining knowledge of the private keys, the criminal authority must ensure that the accused person can no longer dispose of the seized object.\u00a0 This requires the immediate transfer of the virtual currency to a state wallet, i.e. independent infrastructure for the secure storage of cryptocurrency.<\/p>\n

                        In practice, criminal authorities may become aware of the existence of \u201ctainted\u201d cryptocurrency as a result of interrogations, a house search or the analysis of other seized documents such as (email\/WhatsApp) correspondence or transcripts of phone conversations.\u00a0 Whilst third parties such as specialised vault providers may be obliged to disclose additional information, this is, in view of the privilege against self-incrimination, not the case with the accused person.\u00a0 Thus, the latter is in principle not obliged to disclose any holdings in cryptocurrency, the private key or its location, nor the password to the wallet.<\/p>\n

                        However, under certain circumstances, the accused may commit the offence of money laundering in the sense of art. 305bis<\/em> SCC if he or she not only refuses to provide information but actively uses or transfers the cryptocurrency in order to avoid its confiscation.<\/p>\n

                        The realisation of seized cryptocurrency is similarly associated with difficulties.\u00a0 In this regard, the Federal Supreme Court recently ruled (Judgment of 18 October 2021, 1B_59\/2021) that seized assets with an exchange and market price can in principle be realised immediately.\u00a0 However, according to the Federal Supreme Court, early and complete realisation can have a negative effect on the realisable proceeds, especially in the case of large cryptoholdings.\u00a0 In such cases, the prosecution authorities must proceed with adequate care and, where necessary, involve an external expert.<\/p>\n

                        IX\u00a0 Recent developments and other impacting factors<\/strong><\/h2>\n

                        Funds derived from criminal activities are often commingled in a bank account with funds derived from lawful activities.\u00a0 The extent to which such commingled funds may be forfeited and, even more importantly, qualified as an object of money laundering, has always been the subject of controversy.<\/p>\n

                        In a landmark decision of 1 June 2021 (6B_379\/2020), the Federal Supreme Court confirmed the so-called \u201csediment theory\u201d.\u00a0 It means that in the case of withdrawals from a commingled asset or bank account, there can be no money laundering provided these withdrawals do not exceed the legal portion of the account, with the consequence that the tainted \u201csediment\u201d remains untouched and thus can still be secured and confiscated by the criminal authorities.<\/p>\n

                        The \u201csediment theory\u201d allows it to be argued that, e.g. in case of a company having profited from corruption or other criminal activities, payments to shareholders, employees, organs and suppliers do not constitute money laundering provided the tainted \u201csediment\u201d on the profiting account remains unattained and can still be confiscated.<\/p>\n

                        In March 2021, the Federal Parliament passed the revision of the Anti-Money Laundering Act to take account of international standards and the recommendations of the Financial Action Task Force.\u00a0 The revised law entered into force on 1 January 2023.\u00a0 It entails extended due diligence obligations for financial institutions: the identity of the beneficial owner (e.g. of a bank deposit) must now be verified<\/em> (not only established <\/em>as before) and customer data must be regularly updated for all clients<\/em> (not only for politically exposed persons <\/em>as before).\u00a0 Furthermore, the revised law abolishes the current time limit of 20 working days for the processing of a report by MROS and, in return, provides for a right of the financial intermediary according to which he or she may terminate the reported business relationship if MROS does not inform him or her within 40 working days that the reported information will be transmitted to a prosecution authority.\u00a0 Based on the Federal Act on the Implementation of International Sanctions (Embargo Act, EmbA), Switzerland, adopting European sanctions, has frozen financial assets worth CHF 7.5 billion against sanctioned Russian politics and oligarchs.\u00a0 It is an issue of controversy whether and under what conditions such seized assets could ultimately be confiscated and used for Ukraine\u2019s recovery.\u00a0 On 23 November 2022, the Federal Council adopted further sanctions against Russia in response Russia\u2019s military aggression against Ukraine.\u00a0 The Federal Council is thus adopting, in principle, the latest measures adopted by the European Union as part of its eighth package of sanctions.\u00a0 The measures include, inter alia<\/em>, a new ban on the provision of legal services to the Russian government and to Russian companies, as well as on holding seats on the boards of certain Russian state-owned companies.\u00a0 The Federal Council has ensured, nevertheless, that access to Swiss law shall be preserved and that the rule of law shall be fully guaranteed.\u00a0 This was the Federal Council\u2019s condition for adopting the new ban.\u00a0 However, it remains that there is a strong tension between the ban on legal advisory services and the right to an effective legal remedy.\u00a0 The new ban will cause a substantial uncertainty for legal advisors as to what services are still allowed or indeed prohibited.<\/p>\n

                        On 1 January 2024, several selective amendments to criminal procedure law came into force, which are particularly aimed at increasing the efficiency of criminal prosecution.\u00a0 These improvements should also work in favour of asset recovery efforts of the injured party<\/p>\n","protected":false},"excerpt":{"rendered":"

                        I\u00a0 Executive summary Switzerland is a small but, nevertheless, very important banking country and commodity trading hub.\u00a0 It is thus not surprising that Switzerland is also a prominent jurisdiction for national and transnational asset recovery disputes.\u00a0 Swiss law enforcement authorities are committed to investigate money laundering, and to assist crime victims in the recovery of […]<\/p>\n","protected":false},"featured_media":0,"parent":36179,"template":"","meta":{"inline_featured_image":false},"product_brand":[],"product_cat":[3223],"product_tag":[],"class_list":{"0":"post-36264","1":"product","2":"type-product","3":"status-publish","5":"product_cat-fraud-asset-tracing-and-recovery","7":"first","8":"instock","9":"downloadable","10":"virtual","11":"taxable","12":"purchasable","13":"product-type-simple"},"yoast_head":"\nFraud, Asset Tracing & Recovery 2025 | Switzerland<\/title>\n<meta name=\"description\" content=\"This article considers fraud in 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