Publication of a cease and desist order under Art. 34 FINMASA is not a criminal sanction

Facts

The appellant A. was instructed by the Swiss Financial Market Supervisory Authority FINMA to cease the unauthorized acceptance of public deposits by C. SA. FINMA also ordered the publication of this cease and desist order pursuant to Art. 34 FINMASA. A. claimed that this publication had a punitive character and violated various procedural guarantees. The Federal Supreme Court dismissed the appeal.

Considerations

The Federal Supreme Court held that the publication of a cease and desist order under Art. 34 FINMASA is not a criminal sanction, but a repressive administrative sanction and a preventive measure to protect the public. It does not meet the first "Engel criterion" (classification of the measure as criminal law under national law), nor do the nature of the offense or its type and severity suggest that it qualifies as a criminal charge within the meaning of Art. 6 ECHR. Rather, the publication serves to establish market transparency as an essential element of the functioning of financial markets.

The Federal Supreme Court further held that the special…