Facts
The judgment concerns the appeals of Z. (wife of X.) and X. (entrepreneur) against a judgment of the High Court of the Canton of Thurgau, which had convicted both of multiple organised money laundering (Art. 305bis para. 1 in conjunction with para. 2 lit. b SCC) and other offences. The accusations related to the concealment of assets originating from a fraudulent Ponzi scheme in Germany, in which X. and accomplices had caused damage of around 2.8 billion DM (approx. 1.4 billion euros) between 1991 and 2000.
X. had removed the funds from the reach of creditors through complex concealment measures, including transfers to Z., capital companies and a Liechtenstein foundation. Z. was not involved in the fraudulent acts but was accused of laundering the assets derived from the fraud. The Thurgau Public Prosecutor's Office initiated criminal investigations in 2009, 2010 and 2012, based on a report by the Money Laundering Reporting Office (MROS).
The Mannheim Regional Court convicted X. in 2001 and 2003 of fraud and investment fraud to a custodial sentence of 11 years and 6 months, but refused to order confiscation since, under German law at the time, confiscation was excluded where victims had asserted claims for damages (§ 73 para. 1 former German Criminal Code). The insolvency administration of X. subsequently sued Z. for payment of around CHF 21.5 million and other amounts, resulting in a judgment against Z. by the Meilen District Court in 2018. The Thurgau Public Prosecutor's Office convicted both appellants in 2018 of money laundering and forgery to custodial and monetary sentences as well as payment of compensation claims.
Considerations
Confiscatability as a constituent element of money laundering: The Federal Supreme Court confirms that money laundering under Art. 305bis SCC can only be committed in relation to confiscatable assets. The offence primarily protects state confiscation claims, with the confiscation of the assets from the predicate offence being a prerequisite for criminal liability. This applies both to domestic and foreign predicate offences. Confiscatability must exist at the time of the money laundering act and must not be excluded by statute of limitations or other circumstances (paras. 3.2, 4.4).
Foreign predicate offences and confiscatability: In the case of foreign predicate offences, criminal liability for money laundering requires that the assets are confiscatable under the law of the place of commission or that an independent Swiss confiscation claim exists. In the present case, the assets were not confiscatable under German law, as German criminal law at the time excluded confiscation where victims had asserted claims for damages. No independent Swiss confiscation claim existed either, as there were no connecting factors for Swiss criminal jurisdiction (paras. 3.3, 4.2, 4.4).
No criminal liability despite concealment acts: The appellants had concealed the assets in order to remove them from the reach of creditors. The Federal Supreme Court clarifies that such acts do not satisfy the elements of money laundering if no state confiscation claim exists that could be frustrated. The offence of money laundering does not…