Money laundering through the use of criminally obtained assets and foreign transfers

Facts

The Criminal Court of the Canton of Lucerne convicted Appellant X. on 1 July 2015 of multiple cases of commercial fraud, forgery of documents, money laundering, obtaining false certification by deception, breach of fiduciary duties and fraud in enforcement proceedings, sentencing him to a custodial sentence of 7 years and a conditional fine. The Cantonal Court of Lucerne upheld the convictions on 25 November 2016, except for the fraud in enforcement proceedings, and reduced the sentence to 6 years' imprisonment and a conditional fine of 120 daily rates. X. appealed against this judgment to the Federal Supreme Court in criminal matters, seeking acquittal or a more lenient sentence. The Office of the Attorney General of the Canton of Lucerne requested dismissal of the appeal.

The appellant was accused of using criminally obtained assets through A. AG and B. AG as well as in the context of precious metal transactions. The lower court considered this to constitute money laundering within the meaning of Art. 305bis SCC. X. argued that the use of the funds in the course of business activities did not constitute concealment and did not serve to secure the proceeds, since the funds had been transferred to third parties and documented. He also denied the subjective elements of the offence, claiming that he had acted at most with gross negligence.

Considerations

The Federal Supreme Court examined whether the use of criminally obtained assets and foreign transfers fulfilled the elements of money laundering. According to Art. 305bis SCC, a person commits an offence if they carry out acts that are suitable for obstructing the identification, tracing or confiscation of assets derived from a serious criminal offence. The lower court had affirmed this in general terms without specifying in detail how the transactions were supposed to obstruct confiscation.

The Federal Supreme Court clarified that the mere investment in consumer goods or the extension of a paper trail alone does not constitute money laundering, provided that there are no further acts of concealment and the assets are still subject to confiscation. Furthermore, a foreign transfer is only to be qualified as money laundering if it is suitable…