Facts

Parties: Public Prosecutor's Office of the Canton of Solothurn (Appellant) against Swiss Post (Respondent).

Facts:

  • A. AG, a financial intermediary, received two bank transfers of EUR 5,000,000.- from Bank D. S.A., Luxembourg, on February 10, 2005, which were based on a crime.
  • On February 11, 2005, B., the board member of A. AG, withdrew CHF 4,600,000.- in cash and handed the money to C., the director of A. AG.
  • Swiss Post was accused of having carried out the cash payment without verifying the origin and use of the money.
  • The Public Prosecutor's Office of Solothurn filed charges against Swiss Post for money laundering on July 16, 2010.
  • The District Court of Solothurn-Lebern fined Swiss Post CHF 250,000.-, but the Higher Court of Solothurn acquitted it.

Main Question: Can Swiss Post be punished for money laundering under Art. 102 para. 2 SCC if no natural person can be identified as the perpetrator?

Considerations

The criminal liability of the company under Art. 102 SCC requires that a criminal offense has been committed within the company in the course of business activities within the scope of the company's purpose. The provision does not establish liability based on causation but requires that the objective and subjective elements of an underlying offense are met. In the case of primary liability under Art. 102 para. 2 SCC, the criminal liability of the company is in addition to that of the individual perpetrator. A causal link between organizational deficiencies and the underlying offense is required.

In the present case, the cash payment of CHF 4,600,000.- was objectively qualified as money laundering under Art. 305bis SCC. However, the public prosecutor's office was unable to prove the subjective elements in the natural persons involved. The public prosecutor's office…