Facts
The bank employee X., responsible for the Latin America sector at two Swiss banks between 1995 and 2008, was involved in managing a bank account opened in the name of the Panamanian company F. SA in June 2003. This account, credited with 3.6 million US dollars (USD), was linked to a Liechtenstein foundation established for the benefit of C., whose son, H., was designated as the sole economic beneficiary. The funds originated from an account held by C. with a Brazilian bank, with a power of attorney granted to J., C.’s former partner and a Brazilian federal judge.
In October 2003, C. and J. were arrested in Brazil as part of the widely publicized criminal operation “K.” Brazilian investigations revealed that C. played a central role within a criminal organization, acting as its “treasurer” and managing funds derived from illicit activities, including passive corruption, abuse of authority, breach of public trust, extortion, and blackmail. Assets seized from C. included substantial amounts in foreign currencies, valuable items, and incriminating documents. Despite C.’s claims of a licit origin (salaries, trade in precious stones, etc.), he was unable to justify the provenance of these funds.
From November 2003, X. was informed of C.’s arrest and the suspicions surrounding the criminal origin of the account’s funds. X. reported the incident to his bank’s compliance department but delayed blocking the account or reporting it to the Money Laundering Reporting Office Switzerland (MROS). The account was eventually sequestered by the Office of the Attorney General of Switzerland in June 2004. In 2007 and 2008, C. and J. were convicted by Brazilian courts for their involvement in the criminal organization and related offenses.
The Federal Criminal Court convicted X. in 2010 for failure to exercise due diligence in financial transactions (from 6 June to 11 November 2003) and money laundering (from 11 November 2003), imposing a fine of 90 day-fines at 300 Swiss francs per unit, with a two-year suspended sentence. X. appealed the decision, seeking acquittal or, in the alternative, the annulment of the judgment and a remittal for a new decision. The Office of the Attorney General of Switzerland argued for the dismissal of the appeal or even an increase in the sentence.
Considerations
The Federal Court first recalled that Art. 305bis SCC aims to combat money laundering, particularly within the context of criminal organizations, by requiring a sufficiently close link between the assets and a predicate offense. Contrary to the appellant’s submissions, case law does not require proof of precise knowledge of the offense or its perpetrator, nor does it require establishing a natural and adequate causal link between each individual offense and the laundered funds. A “necessarily tenuous” link suffices, provided it is established that the assets originate from the criminal organization and that the offenses committed by it enabled their acquisition.
In the present case, Brazilian court decisions established the existence of a criminal organization active since the 1990s, of which C. was a key member. The funds in the Swiss account originated directly or indirectly from this organization, as evidenced by the assets seized from C., the lack of a licit justification for these funds, and suspicious interbank transactions. The Federal Court found that these elements were sufficient to establish a natural and adequate causal link between the organization’s…