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Financial Action Task Force Groupe d'action financière THIRD MUTUAL EVALUATION

Financial Action Task Force Groupe d'action financière THIRD MUTUAL EVALUATION REPORT ON ANTI-MONEY LAUNDERING AND COMBATING THE FINANCING OF TERRORISM SUMMARY SWITZERLAND 14 October 2005 © 2005 FATF/OECD All rights reserved. No reproduction or translation of this publication may be made without prior written permission. Applications for such permission, for all or part of this publication, should be made to the FATF Secretariat, 2 rue André Pascal 75775 Paris Cedex 16, France Fax 33-1-45241760 or e-mail: Contact@fatf-gafi.org VCS//19.10.2005//15h30 SUMMARY 1. GENERAL INFORMATION 1. As Switzerland is an international financial services centre of the first order, the main source of criminal proceeds is from economic crime. In the area of terrorist financing, Swiss investigations do not reveal any trends (old or new) as far as methods or techniques used, and it seems too early at this stage to assess the impact of new CFT measures. 2. A major portion of the active financial sector in Switzerland consists of banks, securities brokers, stock exchanges and investment funds. In the non-banking sector, the Money Laundering Law (Loi sur le blanchiment d’argent, LBA) applies not to specific professions or industries but to specific activities that may be used for money laundering purposes. The LBA, which entered into force in 1998, provides the non-banking sector with, in addition to a very broad general clause, a non- exhaustive list of the activities of financial intermediaries that are subject to the Law. In particular, the LBA applies to asset managers, credit institutions, and specifically those that engage in financial leasing, dealers in raw materials (in the case of stock-market trading for third parties), persons dealing in banknotes, currency and negotiable precious metals, bureaux de change, persons who transfer money and value, investment fund distributors and representatives, official and de facto executive organs of Swiss or foreign domiciliary companies, and lawyers and notaries who perform financial intermediation outside their traditional professional activity. Many trustee companies in Switzerland are full financial intermediaries, subject to all the due diligence obligations flowing from the LBA. Insurance companies are subject to the obligations imposed by the LBA. This is also the case for casinos. With a view towards implementing the revised FATF Recommendations, especially the provisions concerning non financial businesses and professions, the Swiss government has proposed revisions to Swiss AML/CFT legislation; these revisions were submitted for consultation in early 2005. 3. The LBA is an outline law based on the principle of self-regulation which had its origins in banking practice (known as “directed self-regulation”). The Swiss legislature has chosen to delegate the responsibility for determining specific implementation rules for the law and for ensuring compliance with it either to administrative supervisory authorities or to self-regulatory organisations (SROs). One should make the following distinction: Financial intermediaries pursuant to LBA Article 2 (2): This category involves financial intermediaries that are subject to official supervision under special laws. Even in this context, self-regulatory mechanisms play an important role (the SROs stipulate the implementation rules for the LBA). Whether or not these intermediaries are affiliated with an SRO, the LBA invests supervisory responsibility in the authorities instituted by special laws. The Federal Banking Commission (CFB) is the oversight body for banks, securities dealers, and fund managers. The intermediaries under its control may also join an SRO that can set minimum standards. Nevertheless, the power to specify the rules for implementing the LBA and to enforce those rules is essentially reserved to the oversight authority; when it comes to specifying rules for observing CDD duties, however, the CFB included in its Money Laundering Directive of 2002 (OBA-CFB) the duty to identify customers and beneficial owners as defined in the Due Diligence Convention of 2003 (CDB 03) negotiated between the banks and the Swiss Bankers' Association. This came about for historical reasons, given that the due diligence obligations have been in force in Switzerland since 1977. The Federal Office of Private Insurance (OFAP) adopted in 1999 a directive specifying rules for implementing the LBA (OBA-OFAP) and supervises insurance institutions that provide direct life insurance or offer or distribute shares in investment funds. The SRO (OA- ASA) is subject to the oversight of the OFAP and has adopted a commentary that supplements the provisions of the OA-ASA regulation for implementation of the LBA by member 2 insurance companies. In relation to its supervisory powers, the OFAP relies to a large extent on the OA-ASA. The Swiss Federal Gaming Board (Commission fédérale des maisons de jeu, CFMJ) has established its own directive specifying rules for implementing the LBA, and it exercises direct supervision over all casinos. The Swiss Casino Federation (FSC) has established an SRO (OAR-FSC), the regulations of which are considered by the CFMJ as setting a minimum standard. On the other hand, the OAR-FSC has no supervisory responsibilities, which remain the preserve of the CFMJ alone. Financial intermediaries engaged on a professional basis in the activities listed in LBA Article 2 (3) These financial intermediaries are not subject to a supervisory authority instituted by a special law. To obtain authorisation to conduct their professional activities, they have the choice of: Affiliating themselves with an SRO recognised and supervised by the AdC under the LBA (currently 11), which means that these intermediaries are subject to the AML rules adopted by the SRO and are supervised and subject to sanction by that SRO. In cases where they are expelled from an SRO, these intermediaries are under the sanctioning authority of the AdC. Obtaining authorisation from the Anti-Money Laundering Control Authority (AdC) created by the LBA, a choice which means that they are subject to provisions of the AML directive issued by the AdC (OBA-AdC of 10 October 2003), and to its direct supervision. The AdC also has the power: (1) to grant or withdraw its recognition of SROs pursuant to the LBA, (2) to approve the SRO regulations, including rules that their members must observe in implementing LBA obligations, (3) to supervise SROs and (4) to ensure that the SROs enforce their regulations 4. Swiss law authorises only a limited number of legal forms for companies including a joint stock corporation (société anonyme), a limited liability Company or société à responsabilité limitée and a limited partnership (société en commandite). The sector of non-profit organisations is made of two types of organisations: foundations and associations. Swiss statute law does not recognise the concept of trust. Furthermore, in Switzerland the fiduciary relationship (fiduciaire) is a bilateral relationship that is closer to a power of attorney (mandat) and should not be confused with the express trust and legal arrangements that are covered by Recommendation 34. 2. LEGAL SYSTEM AND RELATED INSTITUTIONAL MEASURES 5. The criminalisation of money laundering of Article 305bis of the Penal Code (CP), that came into force in 1990, provides that anyone who commits an act intended to obstruct the identification of the origin, discovery or confiscation of property that he knew or should have presumed were derived from a crime, shall be liable to imprisonment or a fine. The notion of property (valeurs patrimoniales) in Swiss law is a broad one, also encompassing the objects that replace them. It is not necessary that a person be convicted of the predicate offence in order to be able to prove that goods are the proceeds of a crime. As regards the subjective aspect of the offence of money laundering, this must be intentional, but if there is contingent intent (dol eventual), this will suffice. The provisions of the Penal Code set out the liability of legal persons (where a legal person is found liable for money laundering, the law provides for a fine of up to 5 million CHF (or approximately 3,230,000 EUR). In cases of money laundering, Article 305bis CP lays down penalties of imprisonment or fines. In serious cases, the penalty shall be a sentence of penal servitude (réclusion)1 for a maximum of five years or imprisonment. The prison sentence shall be accompanied by a fine of a maximum of 1 million CHF (or about 650 000 EUR). In particular, a case is serious where the offender: 1 The distinction between the terms réclusion (penal servitude) and emprisonnement (imprisonment) is not entirely clear in English, as both may be translated by the term imprisonment. The distinction between the two terms is traditionally based on the type of offence (réclusion applies to crimes, and emprisonnement to délits); however, in some cases, the distinction is simply between longer and shorter term prison sentences. 3 a. Is acting as a member of a criminal organisation. b. Is acting as a member of a gang set up to engage systematically in money laundering. c. Makes a substantial turnover or gains as a professional money launderer. 6. In Switzerland, the nature of the offence of money laundering is atypical (the offence is one of obstructing justice) and does not formally include all of the types of conduct referred to in the Vienna Convention (elements of conversion or transfer in that Convention). On the other hand, case-law appears to uploads/S4/ financial-action-task-force-groupe-d-x27-action-financiere.pdf