Economic crimes constitute a field of criminal law that requires dual expertise: that of general criminal law and that of business law. The complexity of financial arrangements, the multiplicity of actors involved and the often international nature of the facts demand rigorous defence, prepared from the earliest stages of the investigation. PBM Avocats advises and represents individuals, company directors and legal entities in economic criminal proceedings before the Geneva and Vaud authorities, notably in cases involving fraud, criminal misappropriation, criminal mismanagement and money laundering.
Fraud (art. 146 SCC): Artful Deception and Damage
Fraud is the most frequently prosecuted economic offence in Switzerland. According to art. 146 SCC, a person commits fraud who, with the intention of procuring an unlawful enrichment for themselves or a third party, artfully induces a person in error by false assertions or by concealing true facts, or artfully confirms them in their error, and thereby causes the victim to perform acts prejudicial to their financial interests or those of a third party. The central element is artfulness: a simple false assertion is insufficient; fraudulent manoeuvres of a nature to deceive even a reasonably vigilant person are required.
The penalty provided is a custodial sentence of up to five years or a monetary penalty. The aggravated form — fraud committed professionally or within an organised activity — is liable to a custodial sentence of up to ten years. In terms of defence, the analysis of the artfulness element is often determinant: demonstrating that the alleged victim failed to exercise the basic vigilance expected may lead to an acquittal. PBM Avocats methodically examines each constituent element of the offence in the defence of its clients.
Criminal Misappropriation and Criminal Mismanagement
Criminal misappropriation (art. 138 SCC) penalises a person who, with the intention of procuring an unlawful enrichment for themselves or a third party, appropriates movable property belonging to another that has been entrusted to them, or misappropriates assets remitted to their management or custody. The distinction from fraud lies in the absence of prior deception: the perpetrator legally holds the assets at the outset and then misappropriates them. The offence is punishable by a custodial sentence of up to five years or a monetary penalty.
Criminal mismanagement (art. 158 SCC) is the typical offence of company directors who cause damage to the assets they are entrusted with managing, by violating their statutory or legal duties. Directors of companies limited by shares, asset managers, managing partners of limited liability companies or general managers may be held liable. The definition of "damage" is assessed concretely: it may consist of an actual loss or a serious risk of loss. The defence frequently invokes the absence of damage, the consent of shareholders or the absence of a qualified duty violation.
Money Laundering (art. 305bis SCC) and Due Diligence Obligations
Money laundering is the act of impeding the identification of the origin, the discovery or the confiscation of assets derived from a crime or a qualified tax offence. The offence is penalised under art. 305bis SCC and may be committed by any individual, not only by financial actors. Financial intermediaries — banks, asset managers, lawyers in certain cases — are simultaneously subject to the due diligence obligations provided for by the Anti-Money Laundering Act (AMLA), violation of which may result in FINMA administrative sanctions independent of any criminal conviction.
The aggravated form of money laundering, provided for under art. 305bis no. 2 SCC, applies notably to persons who act professionally or within a criminal organisation, and is liable to a custodial sentence of up to five years. Money laundering prosecutions are often linked to international mutual legal assistance proceedings. PBM Avocats intervenes in these complex cases, which frequently involve coordination with foreign authorities and questions of private international law.
Criminal Liability of Directors and Legal Entities
Economic crimes primarily engage the criminal liability of the natural persons who committed them. Directors (board members, general managers, managing directors) may be personally prosecuted for offences committed in the course of their duties. Delegation of responsibilities to third parties does not entirely exonerate them: they remain liable if the delegation was insufficiently supervised or if the warning signs were manifest.
Art. 102 SCC provides for subsidiary criminal liability of the company itself when the offence cannot be attributed to a specific natural person due to organisational failure. This liability is particularly relevant in large structures, where identifying an individual perpetrator may prove difficult. PBM Avocats advises company directors on the compliance measures to be put in place to prevent criminal risks and provides them with complete defence when proceedings are initiated.
Penalty Table by Economic Offence in Swiss Law
The table below summarises the maximum statutory penalties provided for by the Swiss Criminal Code (SCC) for the main economic offences. These penalties are statutory maxima; the penalty actually imposed depends on the specific circumstances, prior convictions and any mitigating circumstances.
| Offence | Standard penalty | Aggravated penalty | Art. SCC |
|---|---|---|---|
| Fraud | Custodial sentence up to 5 years or monetary penalty | Up to 10 years (professional or organised activity) | Art. 146 SCC |
| Criminal misappropriation | Custodial sentence up to 5 years or monetary penalty | Up to 10 years (professional or organised activity) | Art. 138 SCC |
| Simple criminal mismanagement | Custodial sentence up to 3 years or monetary penalty | Up to 5 years (intent to enrich) | Art. 158 no. 1 SCC |
| Money laundering | Custodial sentence up to 3 years or monetary penalty | Up to 5 years (professional, criminal organisation) | Art. 305bis SCC |
| Forgery of documents | Custodial sentence up to 5 years or monetary penalty | — | Art. 251 SCC |
| Active corruption (private) | Custodial sentence up to 3 years or monetary penalty | — | Art. 322octies SCC |
| Corporate criminal liability | Monetary penalty up to CHF 5 million | Confiscation of assets | Art. 102 SCC |
Frequently Asked Questions on Economic Crimes
What is the difference between fraud and criminal misappropriation in Swiss law?
Fraud (art. 146 SCC) and criminal misappropriation (art. 138 SCC) are two distinct property offences. Fraud requires that the perpetrator artfully deceived the victim: they presented false facts or concealed true facts in a manner that caused the victim to deceive themselves and commit an act prejudicial to their financial interests. Artfulness — the central element of fraud — requires that the deception goes beyond a simple false assertion: it involves a staging, the exploitation of a particular relationship of trust or manoeuvres that make verification difficult. Criminal misappropriation, on the other hand, requires that the perpetrator appropriated a thing belonging to another or used funds entrusted to them for purposes other than those intended. There is no prior deception: the perpetrator legally holds the thing or funds at the outset, then misappropriates them.
What is criminal mismanagement and who can commit it?
Criminal mismanagement (art. 158 SCC) is committed by a person who, entrusted with managing another's assets or acting as their representative, violates their duty and thereby causes damage to the assets under management. It may be intentional (simple criminal mismanagement, no. 1) or committed through gross negligence with intent to enrich (aggravated criminal mismanagement, no. 2). Typical perpetrators are company directors, asset managers, agents, liquidators or any person vested with management powers over another person's assets. Case law requires the existence of a specific management duty, a violation of that duty and financial damage causally related to the violation. Criminal mismanagement is punishable by a custodial sentence of up to three years or a monetary penalty, and up to five years in the aggravated form.
What are the constituent elements of money laundering in Swiss law?
Money laundering (art. 305bis SCC) is an offence consisting of impeding the identification of the origin, the discovery or the confiscation of assets of which the perpetrator knows or must presume they derive from a crime or a qualified tax offence. The assets must derive from a crime (custodial sentence of more than three years) or a qualified tax offence (tax evasion involving a considerable amount, pursuant to an amendment that entered into force in 2016). The offence is punishable by a custodial sentence of up to three years or a monetary penalty. The aggravated form (membership of a criminal organisation, professional activity, large turnover) is liable to up to five years. Money laundering is also punishable when committed abroad if the predicate act was committed abroad and is punishable at the place of commission.
Can a company be convicted of a criminal offence in Switzerland?
Yes. Art. 102 SCC establishes subsidiary corporate criminal liability: if an offence (crime or misdemeanour) has been committed within a company in the course of commercial activities in conformity with its purposes, and it cannot be attributed to any specific natural person due to inadequate internal organisation, the company is convicted of a monetary penalty of up to five million francs. For certain serious offences (corruption, money laundering, terrorist financing), the company's liability may be retained cumulatively with that of natural persons, irrespective of any organisational shortcoming. The consequences of a criminal conviction of a company may also include confiscation of the assets derived from the offence and implications for regulatory authorisations.
When can one speak of insider trading in Swiss law?
Insider trading is penalised by the Financial Market Infrastructure Act (FMIA, art. 142-143). It consists of an insider exploiting inside information — confidential information capable of influencing the price of a listed security — to carry out transactions on securities or derivatives before the information is made public, or disclosing it to third parties who exploit it. Insiders include members of management and the board of directors, major shareholders, and persons who obtained the information in the course of their professional activity (lawyers, auditors, bankers). Insider trading is a mixed offence: it gives rise to criminal proceedings (FMIA) and may give rise to administrative sanctions by FINMA.