I. Criminal Asset Recovery

At the request of a foreign State, Switzerland may provide for mutual assistance in tracing, seizure of the proceeds of the offence of corruption and other related crimes with the purpose of eventual forfeiture and return to the requesting State or to the persons entitled. The Swiss model of asset recovery recognizes the preference of instituting criminal proceedings to recover assets of criminal origin, for them to be the most effective asset recovery mechanism.

1. Institution of Swiss criminal proceedings

There might be instances where the requesting State does not find itself in the capacity to institute or proceed with domestic criminal investigation. Foreign criminal conviction is often not available or appropriate where perpetrators are protected by immunities, have fled the country to avoid prosecution, or died, or where there is lack of political will. In such cases, Swiss authorities have the power to institute a criminal investigation into laundering of the proceeds of underlying criminal conduct by a foreign national or legal entity, i.e., 'self-laundering' activity.

Swiss criminal justice authorities have jurisdiction over the foreign criminal proceeds when the offence is committed in whole or in part on its territory (pursuant to Art. 3 of the Swiss Criminal Code (which provides that the Swiss authorities have jurisdiction if the offence has been committed in Switzerland) and Art. 7 para.1 of the Swiss Criminal Code (which provides that a crime or misdemeanor is deemed to have been committed at the place where the offender committed the act and at the place where the result occurred). According to the Swiss authorities, the commission of the act within the meaning of Art. 7 of the Swiss Criminal Code covers all types of conduct which make up the elements of the offence. (However, according to the Swiss authorities, "mere acts of participation (incitement, complicity, etc.)" committed by foreigners in Switzerland do not provide sufficient grounds for attributing jurisdiction to the Swiss courts when the principal foreign perpetrator acted abroad, apparently because such acts of participation are deemed to have been committed abroad).

Domestic investigation might be instituted with regard to the following criminal conducts: breach of trust/embezzlement (Art. 138 SCC); fraud (Art. 145 SCC); extortion (Art. 156 SCC); unfaithful management/management fraud (Art. 158 SCC 'Ungetreue Geschäftsbesorgung'); concealment (Art. 160 SCC); participation in a criminal organization (Art. 260ter SCC); money laundering (Art. 305bis SCC); and lack of due diligence in financial matters (Art. 305ter SCC).

The Confederation's competence to prosecute is limited to the crimes enumerated in Art. 336 and Art. 337 of the Swiss Criminal Code (including crimes against federal interests (against federal institutions, by or against federal officials, etc.) as well as cases of white-collar crime, organized crime and money laundering of an inter-cantonal or international dimension).

As the Swiss criminal proceedings to recover assets looted by Sani Abacha and his heirs demonstrate, a foreign head of state, his/her family and members of a foreign government might be qualified as a criminal organisation. Pursuant to Art. 260ter para. 3 SCC (see text in English at http://www.gwg.admin.ch/e/themen/pdf/STGBArt260.pdf), the Swiss authorities have jurisdiction to institute the criminal investigation and prosecute any member of the criminal organisation on the basis that the organisation carries out or intends to carry out its criminal activities wholly or partly in Switzerland.

The Swiss examining magistrate usually indicts a foreign corrupt official through Letter Rogatory on criminal charges. The statute of limitation for prosecution is taken into account. For instance, in statute of limitation for the crime of money laundering is 7 years and for the crime of aggravated money laundering is 15 years. The time limit begins to run when the last infringement is committed.

2. Identification/Tracing of assets

Switzerland may provide assistance in response to a formal request by the foreign State to trace and restrain proceeds of a foreign offence or property of a person suspected or accused of committing a criminal offence of corruption for the purpose of eventual confiscation. These measures may benefit substantially from the Swiss legislative framework to fight the crime of money laundering. There is an effective mechanism of using financial measures to deter, detect and disrupt crime of laundering the proceeds of the underlying criminal conduct through financial intermediaries in Switzerland.

Swiss legislation extents to the competent investigative authorities the powers for tracing and investigating criminal assets/the powers to conduct a search of a bank within the context of a criminal investigation. Swiss prosecutors investigating suspected money laundering by foreign officials might order Swiss banks to provide information on bank accounts. Particularly in cases of criminal organizations and money laundering, the criminal law investigation usually involves expanded investigation regarding all possible objectively connected financial transactions (so-called ‘paper-tracing’). In this case, if the investigative authorities discover a suspicious account, surrender of the documentation regarding all transactions in the account will be requested. Surrender of the documentation of financial transactions of all accounts that are demonstrated to be connected to the first identified bank account may be subsequently requested.

If the competent investigative authority fears that the investigation could lead the suspect to withdraw holdings, it can conduct a surprise search or order the bank to freeze the suspect's accounts. Only Swiss prosecutors or examining magistrates and, in the case of an administrative inquiry, certain Swiss federal civil servants can question a banker with regard to the suspicious monies. During the interrogation, the banker is, for example, asked whether the person in question, accused or not, has an account, a safe or power of attorney with the establishment.

The prosecutor or examining magistrate may issue a final order instructing the files (and bank documents in particular) that have already been collected in connection with the proceedings in Switzerland to be handed over to the authorities of the requesting State. The prosecutor or examining magistrate may also order assets to be frozen in connection with the legal assistance proceedings. This decision is subject to a judicial appeal which may delay the execution of the request for mutual legal assistance significantly. 

Therefore, application of bank secrecy provisions in asset recovery cases has hardly been a real challenge so far. Once the accounts are located, the prosecutor or examining magistrate can freeze the. More challenging however is the detection of such assets.

b) Investigatory activity of the foreign State in Switzerland

The conduct of investigation with regard to Swiss banking information is reserved solely for the Swiss competent authorities. Investigatory activity of foreign public authorities or their agents in Switzerland might meet serious impediments under Art. 271 and Art. 273 of the Swiss Criminal Code. These provisions form the legal basis for the prosecution of the economic espionage. In particular, Art. 273 of the Swiss Criminal Code provides that 'Seeking to discover industrial or business secrets in order to make them accessible to a foreign official or private body is forbidden. Proceedings and penalties under criminal law'.

c) Overview of the elements of the relevant anti-money laundering provisions

The Swiss investigative authorities depend largely on the private sector to trace and locate assets of criminal origin. Identification and tracing of criminal asset may benefit from the system of notification on suspicious financial activity.

Swiss legislation provides for effective collaboration among the Money Laundering Reporting Office (MROS) – the Swiss FIU –, the competent investigative or prosecutorial authorities and the financial intermediaries in order to identify and trace assets of criminal origin. This collaboration takes place in the framework of the fight against money laundering whereby the competent penal authorities resort to the full range of actions available to deter money laundering related to the crime of corruption.

i) Legal basis for combating money laundering

The Federal Act on Combating Money Laundering in the Financial Sector (Money Laundering Act, AMLA) of 10 October 1997 (SR 955.0) regulates the preventive aspects of combating of money laundering in the finance sector. The AMLA applies to all financial intermediaries in Switzerland who accept or hold on deposit assets belonging to third parties or who assist in the investment or transfer of such assets on a professional basis: banks, fund managers, securities traders, insurance companies, lawyers, independent asset managers, fiduciaries, investment advisors, lawyers, insurance companies, etc. (Art. 2 of the AMLA). It covers non financial institutions only to a certain degree.

ii) Public authorities responsible for preventive anti-money laundering measures

Supervisors:

The AMLA is implemented by four Swiss Federal supervisory authorities, those being: the Swiss Federal Banking Commission (SFBC), the Swiss Federal Office of Private Insurance (FOPI), the Swiss Federal Gaming Board (SFGB) and the Money Laundering Control Authority (AMLCA). The first three supervisory authorities simultaneously administer the specific supervisory laws governing their sector, so-called special laws and the Money Laundering Act. The supervisory authority of the AMLCA stems exclusively from the Money Laundering Act and encompasses the supervision of the financial intermediaries directly subordinated to the AMLCA and of the self-regulating organisations (SROs) it recognises, which in turn monitor the financial intermediaries affiliated to them.

The financial intermediaries not supervised by one of the three supervisory authorities mentioned above (Swiss Federal Banking Commission SFBC), the Swiss Federal Office of Private Insurance, the Swiss Federal Gaming Board may choose one of the following:

• they may become affiliated to one of the SROs recognised and supervised by the AMLCA, which henceforth will then be in charge of the intermediary's supervision as the sole authority, or
• place itself under the authorisation and direct supervision of the AMLCA.

The AMLCA is part of the Ministry of Finance.

Switzerland is currently working on the consolidation of the supervisory bodies for banks and non-bank financial intermediaries (the Swiss Federal Banking Commission SFBC, the Federal Office of Private Insurance, the Anti-Money Laundering Control Authority AMLCA) to create a Federal Financial Market Supervisory Authority (FINMA). Creation of the integrated authority will lead to greater harmonization of the rules, including sanctions and their enforcement (see at http://www.efd.admin.ch/dokumentation/medieninformationen/00467/index.html?lang=en&msg-id=13079).

Financial Intelligence Unit:

Money Laundering Reporting Office Switzerland (MROS) is a Swiss Financial Intelligence Unit and a member of the Egmont Group. The Federal Office of Police manages the MROS (Art. 23 (1) AMLA).

The powers of the MROS are stipulated in Art. 23 (2) AMLA and Art. 1 MLO. Accordingly, the MROS has the power to receive and analyze suspicious activity reports in connection with money laundering and takes measures in accordance with the Federal Act on the Federal Criminal Police Central Offices (Bundesgesetz über kriminalpolizeiliche Zentralstellen des Bundes vom 7. Oktober 1994 (ZentG, SR 360) at http://www.admin.ch/ch/d/sr/c360.html). If necessary, the MROS may forward suspicious activity reports to the law enforcement agencies.

The MROS has the power to collaborate with foreign FIUs in matters of transmission of personal data and documents (Article 32 AMLA). 

The Ordinance on the Money Laundering Reporting Office (SR 955.23) dated 25 August 2004 lists the tasks of the Reporting Office and its handling of sensitive financial disclosures. Under Article 1 of the Ordinance, MROS has the following mandate:

• assist the law enforcement agencies to combat money laundering, organized crime and terrorist financing;
• function as the national reporting office in the fight against money laundering, organized crime and terrorist financing;
• foster awareness amongst financial intermediaries of money laundering, organized crime and terrorist financing. In doing so, the MROS identifies typologies that are useful for training of financial intermediaries in Switzerland.
• publish an anonymous annual statistical report on developments in the fight against money laundering, organized crime and terrorist financing in Switzerland.

Also, the MROS operates a database on suspicious transaction reports received – GEWA system – capable of providing statistical data on the number of reports, their content, nature and origin, the grounds of suspicion together with their frequency. The MROS exchanges information linked to money laundering, organized crime and terrorist financing at the national and international level (Art. 1 Par.2 MLO).

iii) Bank Secrecy

Switzerland has stringent legal rules and established custom on bank secrecy. The obligation of the bank to maintain confidentiality in relation to the financial interests of a bank client has to be primarily seen as an aspect of the right of privacy of natural and legal persons (see Art. 28 of the Civil Code (Swiss Federal Act concerning the Amendment of the Swiss Civil Code: Fifth Part: Code of Obligations of 30 March 1911, SR.220.2); Art. 47 of the Swiss Federal Act of 8 November 1934 on Banks and Savings Banks, SR. 952.0).

Violation of bank secrecy is a criminal act according to the Law on Banks.

At the same time, Switzerland may not refuse assistance to a foreign country in asset recovery cases on the ground of bank secrecy (exceptions are fiscal crimes/tax fraud cases) (See section below on Grounds for refusal to grant MLA).

iv) Reporting Obligations of Financial Intermediaries in the Event of a Suspicion of Money Laundering

Switzerland establishes a formal obligation for banks and other financial intermediairies to report suspected money laundering activity. Such a reporting obligation is envisaged in Article 9 of the Federal Act on Combating Money Laundering in the Financial Sector (Money Laundering Act, AMLA) of 10 October 1997 (SR 955.0). In addition, Art. 305ter of the Swiss Criminal Code (SR 311.0) provides for the right to report suspicious financial transactions without violating the business-client privilege.

Art. 9 of the AMLA, which is entitled 'Duty to report', provides for the reporting obligations of a financial intermediary. Art.9 (1) of the AMLA states that a financial intermediary who knows or has a founded suspicion that assets involved in the business relationship are connected to an offence in terms of Article 305bis SCC (Money Laundering offence), or that assets are the proceeds of a felony or are subject to the power of disposal of a criminal organisation (Art. 260ter No. 1 SCC) must immediately ('without delay') file a report with MROS.

Pursuant to Art. 2 of the AMLA, this reporting obligation applies to all financial intermediaries to be regulated and supervised, even those payment services which are executed without involvement of a bank, such as bureaux de change, precious metals or raw material dealers, and all assets managers not already authorized by the Swiss Federal Banking Commission (SFBC).

Pursuant to Art. 10 of the AMLA, reporting intermediaries must immediately freeze all assets involved for a maximum of five working days from notification until a decision is received from appropriate prosecutorial authorities. For as long as assets are frozen, the intermediary shall not notify the persons concerned or third parties. Violations of the reporting obligation are punishable by fines up to SFr 200,000 (Art. 37 of the AMLA).

MROS maintains comprehensive statistics regarding suspicious activity transaction reports which are published annually. MROS has the powers to pass on the suspicious transaction reports to the prosecutorial authorities for further investigations (Art. 23 of the AMLA).

v) Customer due diligence (CDD) requirements

Chapter 2 of the AMLA requires financial intermediaries to verify the identity of customers (Art. 3) and of financial beneficiaries (Art. 4), to make repeated checks on their identities (Art. 5), to clarify specific situations (Art. 6), and to declare suspicious transactions (Art. 8).

The AMLA formalizes the principle of due diligence that had existed - for banks - in Switzerland since 1 July 1977 (Agreement on the Swiss banks' Code of Conduct with regard to the Exercise of Due Diligence and the Swiss Federal Banking Commission's (SFBC) guidelines on the combating and prevention of money laundering). AMLA has particularly introduced due diligence obligations for all financial intermediairies.

'Know your customer' principle applies to the professional financial intermediaries. The act of negligence in identifying the contractual partner or establishing the beneficial owner's identity is a punishable offence according to article 305ter par. 1 of the Swiss Swiss Criminal Code.

Also, financial intermediaries have to comply with record keeping requirements. Thus Art. 7 of the AMLA requires financial intermediaries to retain records relating to transactions, and to keep them for 10 years after the termination of the business relationship or after the end of the transaction. 

3. Freezing/Seizure of assets

a) Execution of formal request for a precautionary seizure of assets/property

Freezing or seizure of assets is a provisionary/temporary measure that is aimed at the interim protection of assets in Switzerland. Upon explicit request by the foreign State, Switzerland may provide assistance by ordering a precautionary seizure of assets/property. This power of the Swiss competent authorities is granted under Art. 18 ‘Provisional Measures’ of the IMAC. The goals of the provisional measures is to preserve the existing situation, to safeguard threatened legal interests or to protect jeopardized evidence if the proceeding according to IMAC does not appear obviously inadmissible or inappropriate (Art. 18(1) IMAC).

<Swiss legal system does not differentiate between restraining orders and seizure orders>.

Provision of assistance in restraining/seizure orders is based on the principle of trust in the requesting State. As a rule, the Swiss competent authority will rely upon the facts as described in the request for assistance for freeze (unless obviously inadmissible or inappropriate).

As practice shows, the Federal Office of Justice may issue an interim freezing order. The interim freezing orders are restricted in time. The Federal Office of Justice thus sets the time limits for the requesting State to send a formal request for mutual assistance. The interim freezing orders will be confirmed after the official MLA request is declared admissible. As a rule, precautionary measures are valid till the end of the mutual legal assistance proceeding.

As a rule, assets will remain seized until a final and executable order of the requesting state is made available (Art. 74a(3) IMAC). Article 33a of the Ordinance on International Mutual Assistance in Criminal Matters (OIMAC) stipulates that if the handing over of objects and assets intervenes only based on a final and executable order of the requesting State (art 74a, paragraph. 3 IMAC), assets will remain seized until such order is issued or the requesting State notifies the competent executing authority that such an order may no longer be issued, in particular because of lapse of time.

The courts can order the seizure of assets or the freezing of bank accounts anywhere in Switzerland by issuing a written order with which the financial institutions concerned must comply immediately, even if the order is appealed.

In its judgment 1.A 94/2001, the Swiss Federal Supreme Court has acknowledged the admissibility of the freezing and seizure of accounts which might contain funds resulting from bribery, held by persons benefiting from immunity such as a foreign Head of State.

b) Urgent provisional measures for a precautionary seizure of assets

Under Art 18 (2) of the IMAC, if any delay were to jeopardize the proceedings and if there is sufficient information so as to determine whether all the conditions are met, the Federal Office of Justice may likewise order these measures as soon as a request is announced. These measures shall be lifted if the foreign State does not make the request within a deadline set for submitting the ‘completed’ request. Under Art. 18(3) of the IMAC, objections and appeals filed against orders of the Swiss competent authorities made pursuant to Art. 18 IMAC do not have suspensive effect.

c) A precautionary seizure of assets upon the order by the Federal Council

As the current Swiss proceedings on the recovery of assets stolen by Jean-Claude Duvalier, the former President of Haiti demonstrate, the Swiss federal government (the Federal Council) may exercise its constitutional powers to order a temporary freeze of suspicious assets for a determinate period of time. The powers of enactment of the executive freezing orders are exercised when a request for mutual assistance has failed. These powers are based on para. 3 of Art. 184 ‘Foreign Relations’ of the Federal Constitution of the Swiss Confederation (18 April 1999, SR 101). This provision reads that ‘[W]hen the safeguard of the interests of the country so require, the Federal Government may issue ordinances or orders. Ordinances must be limited in time’. It is important to notice that this constitutional provision explicitly requires an executive freezing order to be limited in time. Still, the executive freezing order may be subject to renewal for a restricted number of times. So, for instance, in August 2007, the Federal Council has renewed a freeze on the accounts with assets pertaining to Jean-Claude Duvalier – said to contain SFr7.6 million ($6.3 million) – for another year to allow more time for the Haitian authorities to make their case for restitution of funds. Importantly, this renewal of the executive freezing order is the last one in the Duvalier asset recovery proceedings in Switzerland. However, it is still debatable what number of times can the executive order be extended. It seems that the legal means to retain assets frozen has to be exhausted. As the jurisprudence of the Swiss Federal Court demonstrates, an indefinite freeze on privately owned funds is unconstitutional measure as it violates the principle of proportionality in restrictions placed upon the constitutional right to property (see ATF 131 III 652 of 27 April 2006, para. E. 11, with regard to a case involving SFr8 million deposited in Swiss banks by the former Zairian president, Mobutu Sese Seko).

See Mark Pieth's article in the Neue Zürcher Zeitung (NZZ) on Duvalier's case: 'Potentatengelder als Reputationsrisiko für den Finanzplatz Schweiz: Drohendes Debakel im Fall Duvalier'

d) A precautionary seizure of assets during a Swiss criminal proceedings/Current requirements for the imposition of a freezing order in Swiss jurisdiction

Within the context of the independent criminal investigation conducted by the Swiss authorities, the provisional measures will be undertaken as may be necessary to enable temporary seizure of assets supposedly linked to crimes for the purpose of eventual confiscation. 

As far as the time limit for freezing bank accounts is concerned, the AMLA provides for the rule in Art. 10 'Freezing of assets'. According  to Art. 10 para. 1 of the AMLA, a financial intermediary has the obligation to immediately freeze assets if they are linked to the reported suspicious activities. According to Art. 10 para. 2 of the AMLA, the financial intermediary has the obligation to maintain the seizure of assets until the competent investigating authority issues a decision to that effect. At the same time, the maximum time limit of freezing is five working days from the day when of notification of suspicious activity is made to the MROS. After the time limit is due, the account has to be unblocked unless the MROS transmits the case to criminal investigatory authorities. During the period in which the financial intermediary maintains freezing of accounts, it has the obligation not to inform the parties concerned or other persons mentioned in the suspicious transaction report (Art. 10 para.3 of the AMLA).

4. Confiscation/Forfeiture

The confiscation/forfeiture procedures are described below as provided for under the IMAC and the traditional instruments of criminal law. It should be noted that different regulation applies under the bilateral agreements as concluded with Austria, Germany and the USA (these agreements are not discussed here.

a) Definition and calculation of proceeds for the purpose of forfeiture/confiscation

The Swiss legislation defines the proceeds from crime sought to be confiscated/forfeited in a wide manner and as follows.

Art. 74a para. 2 IMAC provides that the objects or assets subject to forfeiture include

• (a) instruments which served to commit offence;
• (b) products or profits of the offence, their replacement value and an illicit advantage; and
• (c) gifts and other contributions which served to instigate the offence or recompense the offender, as well as their replacement value.

It is possible to estimate the total assets relevant for confiscation. Thus, Art. 70 para 5 of the Swiss  Criminal Code provides that if the amount of assets to be confiscated cannot be ascertained, or may be ascertained only by incurring a disproportionate level of trouble and expense, the court may make an estimate. It should be noted that lenient rules of evidence apply for the estimation procedure, which deviate from the otherwise strict standards of proof in criminal law. In Switzerland, that means that instead of the strict proof within the criminal law system the principle of doubt applies. Where or to the extent that no direct confiscation is possible, a forfeiture of an equivalent sum of money is provided instead.

b) Execution of foreign confiscation orders

The execution of foreign confiscation orders in the context of mutual assistance proceedings is one option for the Swiss authorities to proceed with confiscation of the proceeds of crime. This procedure is regulated by the IMAC and independent of the separate confiscation proceedings governed by the Swiss Criminal Code (Arts. 70-72) wherein there is no need for the requesting State to issue a confiscation order.

Switzerland may execute a foreign request for confiscation of assets of evidently criminal origin after conclusion of the mutual assistance procedure, whereby the Swiss executing authority determines whether mutual assistance is granted and to what extent. A legal basis for the execution of foreign confiscation requests is provided for in the IMAC, Art. 74 ('Handing over of Evidence') and 74a ('Handing over [of Property] for the Purpose of Forfeiture or Return'). As a rule, Switzerland may execute a request for confiscation based on a final and executable decision/ruling of the requesting State which settles the matter of future ownership, i.e. return for the State or to the person entitled (Art. 74a para. 3 of the IMAC). There is no requirement that a person be finally convicted of the underlying criminal conduct in the requesting State. At the same time, the request for confiscation may be executed at any stage of foreign proceeding. Therefore, it seems that there is a wide discretionary power on behalf of the Swiss authorities for the purpose of deciding, on the basis of a thorough examination of all circumstance, whether and under what conditions an anticipated confiscation may take place. Switzerland allows confiscation of both proceeds seized as evidence and subject to precautionary seizure. However, the competent domestic authorities retain the right to delay the return of proceeds of unlawful activity if they are necessary for a pending criminal proceeding in Switzerland.

Furthermore, the proceeds of criminal activity subject to a precautionary seizure may be retained in Switzerland if

• (a) the victim has his habitual residence in Switzerland and they have to be returned to him;
• (b) an authority asserts rights over them;
• (c) a person not involved in the offence and whose claims are not guaranteed by the requesting State shows probable cause that he has acquired rights over these objects and assets in good faith in Switzerland, or if he has his habitual residence in Switzerland, in a foreign country; or
• (d) the objects or assets are necessary for a pending criminal proceeding in Switzerland or appear, because of their nature, to be subject to forfeiture in Switzerland.

Stringent requirements are set not only for the handing over to foreign authorities, but also for the release to an entitled person who has acquired rights in good faith in Switzerland (Art. 74a para.4 (c) and para.5 of the IMAC). Under Art. 74a para (c), the proceeds may be retained whenever a person not involved in the offence and whose claims are not guaranteed by the requesting State shows probable cause that he has acquired rights over these objects and assets in good faith in Switzerland, or if he has his habitual residence in Switzerland, in a foreign country. Under Art. 74a para. 5 IMAC, whenever somebody claims to have rights over the objects or assets under paragraph 4, its handing over to the requesting State shall be suspended until the legal situation is clear. The objects or assets claimed may be handed over to the person entitled if:

• (a) the requesting State agrees;
• (b) in case of paragraph 4, letter b, the authority gives its consent; or
• (c) the claim has been recognized by a Swiss court.

A different procedure of handing over of assets for the purpose of forfeiture applies in case of the execution of the final and enforceable criminal judgments of the requesting State (Art. 94 of the IMAC).

The handing over is ordered with the usual conclusive decree/final order of the Swiss competent authority (Art. 80d and Art. 74a of the IMAC).

c) Confiscation in the context of Swiss criminal proceedings

Criminal asset confiscation/forfeiture is an important and integral part of investigating and prosecuting serious offences under criminal law in Switzerland. Articles 70-72 of the Swiss Criminal Code embody general forfeiture provisions. In case where the Swiss criminal investigation is instituted and carried out against a foreign national subject to Swiss jurisdiction, these provisions apply to the confiscation of the criminal proceeds.

The criminal asset confiscation provisions of the Swiss Criminal Code apply both to assets that are the proceeds of crime and those used to commit the offence. Thus, according to Art. 70 ('Confiscation of assets') of the Swiss Criminal Code, "the court may order the confiscation of assets that have been acquired through the commission of a criminal offence or that are intended to be used in the commission of a criminal offence or as payment therefore, provided that assets are not passed on to the person harmed for the purpose of restoring him to his prior legal position".

If the proceeds of the criminal origin or assets used to commit it have been transferred to a third party, the third party may be liable to confiscation or ordered top pay a compensation amount. At the same time, confiscation is not permitted if a third party has acquired assets in ignorance of the grounds for confiscation and provided he has paid a consideration of equal value therefore or that confiscation would cause him to endure disproportionate hardship (Art. 70 para 2 of the Swiss Criminal Code). The right to confiscate prescribes after seven years; if, however, the prosecution of the offence is subject to a longer prescriptive period, this period also applies to the right to confiscate (Under the Swiss Criminal Code, the prescription period for offences punishable with life imprisonment is 30 years; for offences punishable with imprisonment of more than 3 years, the period is 15 years; the prescription for all other offences is 7 years). Official notice must be given of confiscation. The rights of injured parties or third parties expire five years after the date on which official notice is given (Art. 70 para 4 of the Swiss Criminal Code).

Confiscation is not linked to conviction of the offender.

In addition, in cases where the criminal proceeds subject to confiscation have been disposed of, a judge might order an equivalent compensatory payment/ their replacement value. Art. 71 'Compensatory claim' of the Swiss Criminal Code reads:

1. If assets subject to confiscation are no longer available, the court may uphold a claim for compensation by the State in respect of a sum of equivalent value, which claim may only be enforced against a third party provided he is not excluded in terms of Article 70 paragraph 2.
2. The court may dismiss a claim for compensation in its entirety or in part if the claim is likely to be unrecoverable of if the claim would seriously hinder the rehabilitation of the person affected.
3. The investigating authorities may seize assets of the person affected with a view to the enforcement of a claim for compensation. Such seizure does not accord the State preferential rights in the enforcement of the claim for compensation.

A more stringent asset confiscation procedure applies in cases where the criminal proceeds sought to be confiscated belong to any person who has participated in or supported a criminal organisation, as defined in Art. 260ter of the Swiss Criminal Code. In such case, confiscation extends, first of all, to all assets in the possession of the criminal organisation. Secondly, confiscation is possible without a specific underlying criminal offence from which assets were derived (A nexus between the property and the underlying offence is not required: the property forfeitures may serve as a substitute to products of the offence transferred out of the reach by any means). Art. 72 ('Confiscation of assets of a criminal organization') of the Swiss Criminal Code lie down a presumption that "in the case of assets of a person who participates in or supports a criminal organisation […], it is presumed that assets are subject to the power of disposal of the organisation until the contrary is proven". This provision states that the qualification of a person as a member of the criminal organisation would result into the reversal of the burden of proof regarding the origin of assets for this person.

Art. 72 of the Swiss Criminal Code reads:

"The court shall order the confiscation of all assets that are subject to the power of disposal of any criminal organisation. In the case of assets of a person who participates in or supports a criminal organisation (art. 260ter), it is presumed that assets are subject to the power of disposal of the organisation until the contrary is proven".

Art. 72 para 2 of the Swiss Criminal Code also applies in the field of mutual assistance (ATF 1A.215/2004 of 7 February 2005). (In its judgment 1A.215/2004 of 7 February 2005, the Swiss Federal Supreme Court has confirmed that funds held by a criminal organisation are presumed to be of criminal origin unless the holders prove the contrary. In other words, unless a person who participates in or supports a criminal organisation has reversed the presumption that assets are within the power of disposal of the criminal organisation, the confiscation has to be ordered in accordance with Art. 74a 'Handing over [of Property] for the Purpose of Forfeiture or Return' of the IMAC).   

d) Third party forfeiture

Confiscation orders may be issued against all third parties except for bona fide third parties.  <need to elaborate on the issue of conditions to be met for access to property of third parties>

e) Asset sharing

Art. 74a para 7 of the IMAC provides that Swiss authorities may retain and not hand those objects and assets to which Switzerland is entitled according to an asset sharing agreement. The Federal Act on the Sharing of Confiscated Assets of 19 March 2004 (Bundesgesetz über die Teilung eingezogener Vermögenswerter (TEVG, SR 312.4)) regulates the asset sharing process.

5. Repatriation

Repatriation of assets of criminal origin is made either by a final decision of the competent investigatory authority or the decision of the court. This decisions might be appealed See section Legal Remedies below

II. Civil Asset Forfeiture

The Swiss legal system does not permit the in rem mechanism of non-conviction based forfeiture, whereby civil procedures against assets deriving from foreign criminal activity are used.

III. Civil Law Suits

The claimant state might use the mechanism of civil proceedings (civil law forfeiture). The provisions of the Swiss Civil Procedural Code would apply. [A state will be bringing a claim in the civil courts of a foreign jurisdiction where corruptly acquired assets are located, just as a private person would do.] [Article 53 of UNCAC requires signatories to permit other states to bring civil proceedings to recover assets acquired through the commission of offences under the convention.]