Facts
Parties and procedural history: The appellant X. (currency exchange agent and professional money courier) was convicted by the District Court of Zurich on 30 April 2001 of lack of due diligence in financial transactions (Art. 305ter para. 1 SCC). The Higher Court of the Canton of Zurich upheld this judgment on 27 March 2002 and sentenced him to a suspended prison term of eight months and payment of a compensation claim of 10,000 CHF to the state. X. filed a federal nullity appeal with the Federal Supreme Court, which was dismissed on 27 October 2003.
Factual background: Between 1995 and approximately 20 trips, X. transported cash totalling around 13 million CHF from London to Switzerland. The funds originated from a co-defendant Z., who served as managing director and majority shareholder of the A. AG. In Switzerland, X. exchanged the money into Swiss francs, deposited it into a bank account under his control and forwarded it in accordance with Z.’s instructions—either to accounts of the A. AG or to third parties. X. did not know the identity of the beneficial owners of the funds and failed to conduct the necessary due diligence. Instead, he relied on Z.’s statements that the funds were assets of a Jewish group, tax flight funds or proceeds from hotels or casinos. X. received commissions of 3–3.5% of the transported amount for his services.
Considerations
Perpetrator scope under Art. 305ter para. 1 SCC: The appellant argued that he did not fall within the scope of Art. 305ter para. 1 SCC because he had merely acted as a money courier. The Federal Supreme Court rejected this argument and confirmed that X. qualified as a financial services provider based on his overall activities—particularly exchanging the money, depositing it into his own account and forwarding it. His activity thus fell within the financial sector covered by Art. 305ter SCC. The perpetrator scope is not limited to banks but also includes other professional groups such as fiduciaries, investment advisors or money couriers, provided they conduct financial transactions on a professional basis. The professional activity must be attributable to the financial sector, which was the case here in light of the marginal note of the article (“Lack of due diligence in financial transactions”) and the later concretisation by the AMLA.
Breach of due diligence obligations: X. contended that the required due diligence in identifying the beneficial owner had not been as established in 1995 as it was later. He claimed to have relied on his client Z.’s information and presented an indemnity guarantee. The Federal Supreme Court dismissed these objections. The obligation to identify the beneficial owner applies regardless of the origin of the funds and also in the case of “clean” assets. As a professional money courier transporting large amounts in a short time, X. should at least have been required to obtain documents identifying the beneficial owners. Merely assuming that [Z.] knew the beneficial owners was insufficient. The lower court had also found that X. had not conducted the identification with the required due diligence.
Criminal liability of commissions as proceeds of crime: X. disputed that the commissions should be confiscated as proceeds of crime under Art. 59 para. 1 no. 1 SCC. He argued that the money transfers themselves had been lawful and that the commissions had been paid as remuneration for these services. The Federal Supreme Court did not accept this argument.…