In a decision (6B_45/2021) not intended for publication, the Federal Court recalls several principles relating to the competence of the Swiss authorities in money laundering matters, the question of prior offence and double criminality.
A. THE FACTS
A. was a bank employee. Between 2005 and 2012, he collected personal customer data from his employer’s internal database. Then he transferred them to his private sphere and handed them over to the German tax authorities for a fee in the summer of 2012.
The remuneration obtained from the German tax authorities (EUR 1,147,000) was deposited in a bank account in Germany which was used for the purchase of a property in Spain on October 15, 2012 for an amount of EUR 1,000,000, this by means of a bank account in Spain.
On October 14, 2013, A. proceeded to resell his real estate and transferred the proceeds from the real estate sale to his bank account in Germany.
His Swiss bank accounts did not show any transactions related to these operations. On the other hand, A. left notes in the trunk of his mother’s car with information about the location of the building in Spain. In addition, A. used a SIM card in Switzerland, which he tried to destroy and which contained files related to the real estate purchase.
B. THE LAW
On January 21, 2019, A. was sentenced by the Criminal Court of the Federal Criminal Court, inter alia, for the offence of qualified economic intelligence service (Art. 273 para. 2 StGB) and money laundering (Art. 305bis StGB) to a custodial sentence of 40 months and a pecuniary penalty of 270 days’ fine at CHF 50 suspended for 2 years. A compensation claim of CHF 1,376,400 has been ordered in favor of the Confederation.
The Court of Appeal of the Federal Criminal Court confirmed the conviction of the first instance, but reduced the fine to 180 days at CHF 50.
A. is therefore appealing to the Federal Court.
It does not call into question his conviction for the offence of providing economic information (Art. 273 para. 2 PC). On the other hand, he is contesting his conviction for money laundering on the basis of 2 grievances:
- Theabsence of a sufficient act of hindrance in Switzerland as a basis for the jurisdiction of the Swiss criminal authorities;
- The non-implementation of the money laundering offence based on 3 axes:
- Confiscability of disputed assets;
- The principle of double criminality of the prior offence.
1. Competence of the Swiss authorities in money laundering matters
The Federal Court recalls first of all that the commission of the offence of money laundering takes place at the place where the perpetrator committed the act of obstruction. If the act of obstruction took place in Switzerland, the territorial jurisdiction of the Swiss criminal authorities is based on the place where the offence was committed in accordance with Art. 8 StGB (recital 3.1).
In this case, the appellate authority had considered that theact of obstruction consisted on the one hand in the Damage to the SIM card containing the contact details of a Spanish lawyer who had allowed the purchase of the building in Spain financed by the assets from the crimeon the one hand, the offence of providing economic information (Art. 273 para. 2 StGB) and, on the other hand, in the concealment of the notes concerning this real estate purchase in a folded blanket in the trunk of A’s mother’s car.
The Federal Court confirmed the approach of the previous authority. A. tried, in vain, to prove that the data relating to the property purchase was not on the SIM card, but only on the cell phone, which was not damaged. But for the Federal Court, the mere presence on the damaged SIM card of the lawyer’s contact details in Spain and his connections with this lawyer are sufficient to link the act of obstruction to the territorial jurisdiction of the Swiss authorities.
2. Money laundering offence
In its second plea, A. contests the realization of the offence of money laundering.
His argument is divided into three sections.
A. first contests the confiscable nature of the disputed assets.
” The confiscatory nature of assets constitutes a normative element of the offence of money laundering. According to the case law, it follows from this conception of the impediment to confiscation that only confiscable assets can be the object of money laundering. The impediment of confiscation is therefore subject to the condition that such interests exist “The Federal Court reminds us (ATF 145 IV 335 consid. 3.2, ATF 129 IV 238 consid. 3.3; ATF 126 IV 255 consid. 3b/bb) (consid. 4.3.1). The punishability is thus subordinated to the capacity of the act to defeat the confiscation of assets. The criminal authorities must therefore examine in advance whether the assets acquired by the prior offence are confiscable. In this context, an abstract forfeiture possibility is sufficient. This means that for money laundering to be punishable when there are confiscation claims, the actual initiation of confiscation proceedings is not necessary (BGE 145 IV 335, para. 4.4). The doctrine speaks of a ” hypothetischen Einziehungsobjekt ” (recital 4.3.1).
In this case, the taxable assets were never located in Switzerland, but were paid out in Germany as soon as the prior offense was committed. The confiscation would have been possible only through international mutual assistance with that State. However, Germany was not willing to provide mutual legal assistance. A concrete confiscation in this state was therefore excluded. However, according to the principle of abstract forfeiture, the only decisive criterion is the existence of a claim to forfeiture, and thus of a ” hypothetisches Einziehungsobjekt “. In this case, there is a Swiss claim to confiscation in view of the prior offence of economic intelligence services directed against the Swiss State or sovereignty. Thus, it is sufficient that the mutual assistance route is theoretically open to assert the claim to confiscation that Switzerland could have made through a request for judicial assistance in Germany or even in Spain.
A.’s second criticism relates to the act of obstruction itself.
The Mon Repos Judges rely on a part of the doctrine to retain that an act of obstruction is realized when the perpetrator conceals or destroys documents that could give information on the true owner or the origin of the assets resulting from the crime (recital 4.4.2). For the Federal Court in this case, the concealment, in a folded blanket placed in the trunk of a vehicle belonging to A.’s mother, of notes containing information on banking relations in Spain and on the Spanish lawyer whose bank account was used for the purchase of real estate, as well as the damage to a SIM card containing data on the Spanish lawyer in question, constituted acts of obstruction, since the data carriers contained information useful for tracing the proceeds of crime.
3. The principle of double criminality of the prior offence
Finally, A. is trying to show that the prior offence of economic intelligence services was committed abroad, so that the perpetrator can only be punished for money laundering if the prior offence committed abroad is also punishable in that state (305bis para. 3 StGB), which would not be the case in this instance.
The particularity of this case is that the preliminary offence, i.e. the provision of economic information (Art. 273 StGB), does not require that the incriminated act, in this case the delivery of data abroad, takes place in Switzerland. It can be committed abroad and still be punishable in Switzerland, according to Art. 4 CP protecting crimes against the state and national defense, of which this offense is a part.
However, A. considers that the acts committed are not punishable in Germany, which would prevent the application of Art. 305bis CP.
But the Federal Court confirms that the prior offense was committed abroad. He points out that, contrary to the basic understanding of Art. 305bis ch. 3 StGB, which extends the protection to foreign criminal proceedings and thus to foreign confiscation claims (BGE 145 IV 335 recital 3.3; BGE 136 IV 179 recital 2), the interests of foreign confiscation claims do not preclude Swiss interests in confiscation due to the prior offence against Swiss territorial sovereignty (” Den vorinstanzlichen Ausführungen folgend ist davon auszugehen, dass der Beschwerdeführer die Vortat in Deutschland verübt hat. Entgegen der Grundkonzeption von Art. 305bis Ziff. 3 StGB, die den strafrechtlichen Schutz auf die ausländische Strafrechtspflege und damit ausländische Einziehungsansprüche ausdehnt ( BGE 145 IV 335 E. 3.3; 136 IV 179 E. 2), geht es aber nicht um die Vereitelung ausländischer, sondern aufgrund der gegen die schweizerische Gebietshoheit gerichteten Vortat um schweizerische Einziehungsinteressen” ).
Implicitly, the TF recognizes that the absence of of foreign confiscation claims protected by Art. 305bis ch. 3 Swiss Penal Code allows the offence of money laundering to be retainedThis is because money laundering primarily protects the interest in Swiss confiscation. The case in point is unique in that the prior offence, although committed abroad, has a territorial connection in Switzerland, pursuant to Art. 4 CP.
The Federal Court then notes that it issufficient that the foreign criminal norm contains the objective characteristics of an offence. It is therefore irrelevant that the two standards of the two states have exactly the same protective purpose. The prior offence committed abroad meets all the requirements of Art. 273 para. 2 of the Swiss Criminal Code, and German law, like Swiss law, punishes the transmission of business secrets, which include the data of a bank’s clients.
The condition of double criminality of the prior offence committed abroad is therefore met.
This decision differs from the BGE 145 IV 335 in which the assets were derived from prior offences committed in Germany for which Switzerland had no territorial jurisdiction. Thus, Switzerland had no independent claim to confiscation and the conditions for confiscation were not met in Germany, so that the crime of money laundering could not be realized in Switzerland, in the absence of the confiscable nature of the assets.
Finally, it should be noted that the Federal Court did not address the question of the usability of the correspondence between the Spanish lawyer and A. Indeed, art. 264 al. 1 let. c PPC provides that objects and documents concerning contacts between the accused and a person who has the right to refuse to answer under Art. 170 to 173 PPC, applicable to lawyers, by reference to Art. 171 CPP to article 321 CP. In a published decision, the Federal Court recognized that the scope of Art. 321 StGB extends to any foreign lawyer from any country, including a State outside the European Union (ATF 148 IV 385 consid. 2.6.2). If the appellant had been able to seal his contacts with the Spanish lawyer under Art. 264 al. 1 let. c CPP, the damaged SIM card would have actually contained information excluded from escrow. The question would then arise as to whether the mere concealment of handwritten notes on a Spanish account in a blanket would constitute a sufficient connecting link to punish the offence of money laundering…