Article 305ter paragraph 2 of the Swiss Criminal Code (SCC) came into force in 1994, four years before the Anti-Money Laundering Act (AMLA). At the time, the concern of the legislative was to grant financial intermediaries the right to report to the prosecution authorities cases where they suspected a client of criminal activity without themselves becoming the subject of legal proceedings for breach of professional secrecy. Article 305ter paragraph 2 SCC was therefore the first provision under Swiss law that offered financial intermediaries the possibility of reporting cases of suspected money laundering to the authorities.
The text of Article 305ter paragraph 2 SCC refers to “any observations that indicate that assets originate from a felony.” In its dispatch, the Federal Council defines “observations” as “elements based on suspicion, likely to be supported by the prosecution authorities.” According to the Federal Council, Article 305ter paragraph 2 SCC should allow financial intermediaries to “communicate to the competent authorities the relevant facts of an individual case ‒ their observations, questions, misgivings and all documentary evidence ‒ which lead them to believe that the assets may be of criminal origin.” In other words, within the framework of Article 305ter paragraph 2 SCC, a financial intermediary can file a report based on a likelihood, a doubt or even a sense of unease about continuing the business relationship.
Insufficient diligence in financial transactions and right to report
Last modification 24.12.2019