Facts
The B. AG, an internationally active Swiss energy company, was damaged by I. and A. to the amount of CHF 5'751'619.10 between 23 October 2009 and 2 August 2011. The injured party established this amount through non-performed maintenance and consulting services as well as fictitious licence fees. D., the sole board member and shareholder of several companies (including H. AG and G. AG), was accused of having assisted the two main perpetrators in committing commercial fraud and of making his companies available to conceal the illicit origin of the funds obtained. The Public Prosecutor’s Office of Graubünden and the [B. AG] filed charges for aiding and abetting commercial fraud and a serious case of money laundering.
The Regional Court of Landquart acquitted [D.] of both charges in a judgment dated 8 September 2017 and referred the B. AG’s civil claim to the civil courts. On appeal by the Public Prosecutor’s Office and the [B. AG], the Criminal Court of the Canton of Graubünden convicted [D.] on 25 February 2019 of a serious case of money laundering to a suspended custodial sentence and a fine. The B. AG’s civil claim was again referred to the civil courts. The [B. AG] then filed a criminal appeal with the Federal Supreme Court and requested that [D.] be ordered to pay damages of CHF 2'659'778.52 plus interest. The Federal Supreme Court set aside the judgment of the Criminal Court of the Canton of Graubünden and remitted the matter for reassessment.
Considerations
The Federal Supreme Court first examined the admissibility of the adhesion claim under Art. 122 para. 1 CrimPC and the requirements for its substantiation and quantification pursuant to Art. 123 CrimPC. It confirmed that the criminal court must decide on the civil claim if the accused is convicted, provided that the claim is sufficiently substantiated and quantified (Art. 126 para. 1 lit. a CrimPC). Although the lower court had convicted [D.] of money laundering, it had referred the civil claim to the civil courts because it considered the claim not sufficiently evidenced. This view was inconsistent with Federal Supreme Court case law, according to which the offence of money laundering (Art. 305bis SCC) also serves to protect the person harmed by the predicate offence. The money launderer is therefore liable for the damage caused by the predicate offence to the extent of the assets whose confiscation was prevented by the money laundering.
The lower court had also incorrectly assessed D.’s civil liability as a money launderer under Art. 41 CO (damages for unlawful injury) and Art. 50 para. 3 CO (joint and several liability of multiple tortfeasors). It assumed that [D.] was only liable subsidiarily and that the civil claim was not sufficiently substantiated. The Federal Supreme Court rejected this legal view and emphasised that the money launderer is liable for the damage maintained by the money laundering regardless of any participation in the predicate offence. The liability extends to the entire damage caused by the predicate offence, insofar as the confiscation of the illicitly obtained assets was prevented. The lower court should therefore not have referred the civil claim to the civil courts but should have decided on it itself.
The Federal Supreme Court set aside the…