In cases in which a financial intermediary:
- on the one hand knows or has a reasonable suspicion that the assets involved in the business relationship:
- are linked to a criminal act pursuant to Art. 260ter Fig. 1 or 305bis StGB,
- are the proceeds of crime,
- are subject to the power of disposal of a criminal organisation, or
- serve to finance terrorism (Art. 260quinquies Para. 1 StGB);
- on the other hand breaks off negotiations concerning the establishment of a business relationship on the grounds of a reasonable suspicion,
the financial intermediary must make a report without delay to the Money Laundering Report Office Switzerland (Meldestelle für Geldwäscherei – “MROS”) at the Federal Office of Police (Bundesamt für Polizei – “fedpol”) (Art. 9 GWG). The personnel of the financial intermediary who are involved in the case may, under certain circumstances, submit an anonymised report.
Knowledge means (unequivocal) knowledge.
In respect of what constitutes a reasonable suspicion, the GwG of 17 June 1996 declares that:
- the suspicion does not have to be a virtual certainty
- a financial intermediary is not required to systematically clarify every transaction to ascertain whether this constitutes criminal behaviour
- a suspicion is deemed to be reasonable if it is based upon specific evidence or several grounds for suspicion which indicate that there is a risk that the assets are the proceeds of crime.
Legal texts furthermore state that a suspicion constitutes a reasonable suspicion if this is based upon findings which the financial intermediary has made with due diligence (DE CAPITANI, Art. 9 GwG, N37). In this conjunction, the findings relate to the existence of unusual matters or grounds for suspicion which suggest that assets are the proceeds of crime.
Grounds for suspecting money laundering
Grounds (37 different grounds are listed) for suspecting evidence of business relationships or transactions with heightened risk are set out in the Appendix to the Ordinance of the Swiss Financial Market Supervisory Authority concerning the Prevention of Money Laundering and the Prevention of Terrorism Finance (Verordnung der Eidgenössischen Finanzmarktaufsicht über die Verhinderung von Geldwäscherei und Terrorismusfinanzierung – “GwV-FINMA”, SR 955.033.0).
In this conjunction, the report made by the financial intermediary must contain at least the following details (cf. Art. 3 MGwV):
- the name of the financial intermediary, of the public authority or of the person pursuant to Art. 305ter Para. 2 StGB from whom the report or complaint originates, in each case together with details of a contact individual;
- the bodies pursuant to Art. 12 GwG (FINMA or SRO) which supervise the financial intermediary;
- the information required to identify the contracting party of the financial intermediary pursuant to the provisions of Art. 3 GwG;
- the information required to identify the beneficial owner pursuant to Art. 4 GwG;
- information about further persons who are authorised signatories or who are authorised to represent the contracting party of the financial intermediary;
- involved assets at the time of the report or complaint;
- a description of the business relationship, as detailed as possible;
- a description of the suspicions upon which the report or complaint are based, as detailed as possible;
- the measures which have been taken.
The report must be submitted together with the following enclosures:
- documents relating to the financial transactions;
- documents relating to the necessary clarifications which have been performed, as well as
- all further records in accordance with the particular circumstances.
Money Laundering Reporting Office Switzerland (MROS)
The MROS has drawn up an official report form. This is available in the form of a download. The form must be sent by fax or – if a fax machine is not available – by first class post to the Report Office.
Official MROS report form: Suspicious activity report | fedpol.admin.ch
Federal Office of Police / Bundesamt für Polizei
Money Laundering Report Office Switzerland / Meldestelle für Geldwäscherei (MROS)
T +41 31 323 40 40 / F +41 31 323 39 39
Special rules applicable to attorneys-at-law and notaries
Attorneys-at-law and notaries are not subject to the reporting obligation insofar as their activities are governed by professional secrecy pursuant to Art. 321 StGB.
Art. 321 StGB – Breach of professional secrecy
1. Clergymen, attorneys-at-law, defence lawyers, notaries, patent lawyers, auditors, physicians, dentists, pharmacists, midwives as well as their vicarious agents who are subject to a duty of confidentiality pursuant to the Swiss Code of Obligations who disclose a secret which had been entrusted to them as a consequence of their profession, or which they discerned in the exercise thereof, shall upon request be punished with a custodial sentence of up to three years or a fine.
A corresponding punishment shall be imposed upon students who disclose a secret which they discerned during the course of their studies. The breach of the professional duty of confidentiality shall remain punishable after the end of the exercise of the profession or of the studies.
2. The offender shall not be liable to punishment if he disclosed the secret with the approval of the authorised party or with the written approval of the superior authority of the regulatory authority issued upon the request of the offender.
3. The Swiss and cantonal provisions pertaining to the duty to provide witness and the duty to provide information to a public authority shall remain reserved.
In this conjunction it is important to note that the activities covered by professional secrecy rules do not lead to GwG subordination. For this reason a distinction must be drawn between:
- occupation-specific activities (not subject to the GwG), and
- non-occupational-specific, accessory activities (subject to the GwG)
In general terms the assumption of a non-occupational specific activity resulting in GwG subordination is conditional upon whether the commercial element outweighs the attorney activity (cf. in this conjunction FINMA Circular 2011/1 – Financial Intermediation Pursuant to GwG (Finanzintermediation nach GwG)).