Facts
The respondent worked as a client advisor at the Swiss Bank Corporation (SBG) in Zurich and managed an account for the married couple A.-B., who were involved in drug trafficking, from October 1978 onwards. From November 1984 onwards, only B. was authorised to dispose of the funds. Between August 1990 and July 1993, the respondent disposed of approximately 7 million Swiss francs from this account, thereby removing them from the reach of the prosecution authorities. He received personal benefits from the drug trade in return for these transactions.
The Canton of Zurich Public Prosecutor’s Office charged the respondent with commercial money laundering (Art. 305bis para. 2 lit. c SCC). The District Court of Zurich acquitted him on 4 March 1997 but ordered him to pay 1,602,396 Swiss francs as compensation for the loss of illicit assets. The Higher Court of the Canton of Zurich upheld the acquittal on 14 June 1999 but set aside the compensation order. The Federal Supreme Court quashed this judgment on 29 November 2000 and referred the matter back for a new decision (BGE 126 IV 255). The Higher Court again acquitted the respondent on 3 April 2002 but confirmed the compensation order issued by the District Court.
The Canton of Zurich Public Prosecutor’s Office then filed a federal nullity appeal with the Federal Supreme Court, alleging a violation of Art. 19 SCC. It argued that the respondent had not been mistaken about the facts but about the law. The Federal Supreme Court dismissed the appeal.
Considerations
The subject matter of the proceedings concerns the classification of the respondent’s misconception as a mistake of fact or a mistake of law. The lower court classified the misconception as a mistake of fact under Art. 19 para. 1 SCC, whereas the appellant assumed a mistake of law under Art. 20 SCC.
The lower court found that the respondent knew that the accounts were funded with proceeds from drug trafficking. However, he believed that, due to the passage of more than ten years, the assets were no longer confiscatable and that, therefore, no money laundering could be committed. This misconception related to the confiscatability of the assets, a normative element of the offence of money laundering (Art. 305bis SCC).
The distinction between a mistake of fact and a mistake of law is governed by Arts. 19 and 20 SCC. A mistake of fact occurs where the offender has a false impression of a constituent element of the offence and, as a result, lacks the intent required to fulfil the criminal provision. A mistake of law, by contrast, concerns ignorance of the unlawfulness of the act despite knowledge of all the factual circumstances. Case law and legal scholarship…