Prohibited actions for a foreign state: intent and mistake of law in the transfer of client files to foreign authorities without authorization

Facts

Parties and procedural history:

The Federal Prosecutor’s Office as the appellant challenged the judgment of the Federal Criminal Court (Criminal Division) of 9 May 2018, which acquitted the respondent [X.] (Chairman of the Board of Directors of [A. AG] ) of the charge of prohibited actions for a foreign state (Art. 271 para. 1 SCC). The Federal Prosecutor’s Office sought the reversal of the judgment and a conviction of the respondent.

Facts of the case:

The respondent, as Chairman of the Board of Directors of [A. AG] domiciled in Zurich, had client relationships reviewed in the context of a tax dispute between Switzerland and the USA. Dossiers of customers allegedly liable to tax in the USA were compiled. In October 2012, he filed a voluntary disclosure with the US Department of Justice (DoJ), which rejected a request for the release of the dossiers via the mutual legal assistance route. In November 2013, the respondent travelled to the USA without authorization under Art. 271 para. 1 SCC and handed over a USB stick containing 109 client dossiers to the DoJ via a lawyer. Before the transfer, he had the legality of his actions reviewed by two lawyers and an additional expert opinion by Prof. Dr. [C.] and lic. iur. [D.] . Based on these expert opinions, he believed he had acted lawfully.

The Swiss Financial Market Supervisory Authority (FINMA) filed a criminal complaint with the Federal Prosecutor’s Office in 2015. In 2017, the Federal Prosecutor’s Office convicted the respondent by summary penalty order to a suspended fine and a fine. After the defence filed an objection, the Federal Prosecutor’s Office brought charges. The Federal Criminal Court acquitted the respondent in 2018, whereupon the Federal Prosecutor’s Office filed an appeal.

Considerations

1. Intent and mistake of law:

The Federal Prosecutor’s Office argued that the Federal Criminal Court had incorrectly denied the respondent’s intent. It contended that the respondent had at least accepted the unlawful transfer of data, as he had obtained the expert opinions only for the purpose of sham protection. The Federal Supreme Court clarified that awareness of the unlawfulness is not a subjective element of the offence under Art. 271 SCC, but rather a separate element of guilt (theory of guilt, Art. 21 SCC). The lower court had therefore incorrectly denied intent by treating the awareness of wrongfulness as an element of the offence.

2. Distinction between mistake of fact and mistake of law:

The court clarified the distinction between a mistake of fact (Art. 13 SCC) and a mistake of law (Art. 21 SCC). A mistake of fact exists where the offender has a false conception of factual or normative elements of the offence, whereas a mistake of law exists where the offender, despite knowing the facts, does not recognize the wrongfulness of their actions. The respondent had indeed grasped the social significance of the act for a foreign state, but erroneously believed he was entitled to act as he did. This misconception did not affect intent, but rather, if at all, guilt (mistake of law).

3. Avoidability of the mistake of law:

The mistake of law was avoidable, as the expert opinions obtained were incomplete and contradictory. The opinions of law firm [B.] expressly pointed to a legal grey area, while the…