Facts
The complainant L.B. was employed as a member of the management board of BFZ Bankfinanz Zürich (later Bank Austria Schweiz AG) until the end of January 1993 and was responsible for logistics and administration. In May 1991, he opened two accounts in the names of NOVUM Handelsgesellschaft mbH and TRANSCARBON Handelsgesellschaft mbH, both based in Berlin (former GDR). The account opening applications were signed by R.S., who acted as a representative of the companies. L.B. accepted the documents without further examination, although he suspected that not the stated trading companies, but R.S. was the beneficial owner. He also accepted commercial register extracts that had been issued before reunification without making any further enquiries.
The Higher Court of the Canton of Zurich convicted L.B. with a judgment dated 28 August 1997 of failing to exercise due diligence in financial transactions under Art. 305ter para. 1 SCC and imposed a fine of 5,000 Swiss francs. L.B. filed an appeal in nullity against this judgment and requested that the judgment be set aside and that he be acquitted by the lower court.
Considerations
1. Factual elements and protected legal interest of Art. 305ter SCC The Federal Supreme Court confirms that Art. 305ter SCC is an abstract endangerment offence that protects the administration of justice by requiring the identification of the beneficial owner in financial transactions. The provision covers professional activities such as the acceptance, storage, investment or transfer of third-party assets, provided that the identity of the beneficial owner is not established with the due diligence required by the circumstances. The decisive factor is that the mere breach of the identification obligation fulfils the offence, regardless of whether the assets were later acquired in a manner relevant to criminal law.
2. Relationship to the professional rules of the Swiss Bankers Association (FPO): The Agreement on Professional Rules on Due Diligence for Banks (FPO) serves as an aid to interpretation but does not bind the criminal judge. The FPO primarily regulates formal procedures and serves to protect the banks themselves and to maintain the professional standards. They cannot therefore be used as the sole standard for the criminal assessment under Art. 305ter SCC. The criminal judge examines whether the offender established the identity of the beneficial owner with the due diligence required by the circumstances, with the specific circumstances of the individual case being decisive.
3. Breach of due diligence in the specific case The complainant acted negligently by failing to make further enquiries despite existing doubts as to the identity of the beneficial owner. He blindly relied on the information provided by the director of the Österreichische Länderbank, P.F., without conducting the necessary…