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- Art. 3 FC
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 73 PRA
- Art. 73a PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
- I. General
- II. Lack of connection to Switzerland (let. a)
- III. Prohibition on circumventing international mutual assistance (lit. b)
- IV. Adverse effect on national interests or public security and order (lit. c)
- Bibliography
- Materials
I. General
1 Art. 31 AMLA sets out the reasons for MROS to refuse to provide information in response to a request from a foreign FIU. This article was created as part of the partial revision of the AMLA and came into force on November 1, 2013. If one of the compelling reasons for refusal listed in this article applies, MROS may not provide information to a foreign FIU. This provision makes it clear that requests from partner FIUs that have no specific connection to Switzerland (so-called fishing expeditions), are aimed at circumventing mutual legal assistance or affect Switzerland's national interests or public security and order, will not be answered in terms of content. In order to refuse to provide information to a foreign FIU, the request must constitute a “serious abuse of the administrative assistance process”. Each request for information from a foreign FIU is examined by MROS upon receipt from these points of view (case-by-case examination). The Swiss reporting office decides independently on the existence of one of these grounds for refusal, and no legal remedy can be taken against this decision. As already mentioned, the refusal to provide information must be a “serious abuse of administrative assistance”. In less serious or unintentional cases (e.g. the foreign FIU simply forgot to mention the connection to Switzerland), MROS can allow the partner authority to amend its request.
2 The mandatory grounds for refusal listed in Article 31 AMLA are national requirements that restrict the international exchange of information with partner FIUs to a certain extent or subject it to national barriers. However, these national requirements also correspond to international guidelines issued by the Financial Action Task Force (FATF, also known by its French name Groupe d'Action Financière, or GAFI for short) and the Egmont Group. Art. 31 AMLA is modeled on Art. 2 para. 2 and Art. 12 para. 2 SIaG, whereby international mutual assistance is subject to Art. 1a and 2 IMAC, which contain provisions similar to Art. 31 let. a and c AMLA.
II. Lack of connection to Switzerland (let. a)
A. MROS practice
3 The reason for refusal mentioned in a, the lack of connection to Switzerland, is the one most frequently encountered in practice. A connection to Switzerland exists as soon as an involved natural person is a Swiss citizen, a natural or legal person is domiciled in Switzerland, details of a business relationship in Switzerland (IBAN or name of the account-holding financial intermediary incl. contracting party/account number) are given, or police findings indicate links to Switzerland. It is sufficient if one of these conditions is met. If none of these conditions is met, it is considered a fishing expedition, which violates Switzerland's territorial principle and is therefore prohibited. In its principles for cooperation between FIUs, the Egmont Group also requires that requests for information must have a connection to the respective country and must be sufficiently substantiated in this regard.
B. MROS procedure for Art. 11a para. 2bis AMLA
4 It is the responsibility of the requesting FIU to show the connection to Switzerland in the request, although the FIU cannot be required to present the facts completely and consistently. Cases in which there is a connection to Switzerland arise primarily in connection with the gathering of information from financial intermediaries in accordance with Art. 11a para. 2bis AMLA. For the Swiss reporting office, there is a sufficient connection to Switzerland if the owner of the business relationship and the account-holding Swiss financial intermediary are explicitly named by the foreign FIU, even if no more precise information about the business relationship (e.g. account number) is available. This procedure is important for efficient cooperation, since a foreign FIU – and thus also MROS – often only knows that a business relationship exists between a subject and a Swiss financial intermediary, without having more precise information such as account numbers or transactions. If, on the other hand, the partner FIU merely suspects the existence of a business relationship in Switzerland without mentioning a specific financial intermediary, MROS categorizes the request as a fishing expedition and asks the requesting FIU to specify the Swiss connection (e.g. Swiss IBAN or Swiss financial intermediary) or, if no further information is provided by the foreign FIU, not to respond to the content replied to.
III. Prohibition on circumventing international mutual assistance (lit. b)
A. For information purposes only
5 Lit. b, in addition to Art. 30 para. 1 lit. d and Art. 30 para. 4 lit. c AMLA, primarily enshrines the requirement that the exchange of information between FIUs must never circumvent international mutual assistance. International information sharing always takes place at the analysis stage and the information obtained is for information purposes only – never as evidence. If a foreign FIU attempts to obtain information through administrative assistance that, under Swiss law, may only be obtained through the use of coercive measures ordered by a judge, MROS must refuse to provide the information. The term “coercive measures” refers to the coercive measures under Swiss police and criminal procedural law (in particular the measures under the fifth title of the Swiss Criminal Procedure Code) and the coercive police measures under the respective cantonal police laws. The extension mentioned in b) to other proceedings regulated by special laws or international treaties is explained by the fact that the use of procedural coercion can also occur in certain administrative assistance agreements and this may not be circumvented either.
B. MROS practice
6 In addition to the type of use of the information (information for information purposes via the FIU channel and evidence via the mutual assistance channel), MROS must also clarify whether the requesting state has already submitted a mutual assistance request for the same facts or the same information and whether the Swiss authority responsible for mutual assistance has already responded or will respond to it. If this is the case, MROS refers the matter to the legal assistance channel and, for reasons of efficiency, does not respond to the request. If the request for legal assistance has been rejected by the competent Swiss authority, MROS must find out the reasons for this. If the request for legal assistance was simply not sufficiently substantiated, MROS provides the requested information via the FIU channel to enable the requesting state to complete the request. One of the main objectives of the exchange of information between FIUs is to enable international legal assistance. If the request for mutual assistance has been rejected for other reasons, in particular in connection with one of the grounds for refusal listed in Art. 2 IMAC, the Swiss reporting office will carefully check whether it is allowed to exchange information via the FIU channel based on Art. 31 AMLA.
IV. Adverse effect on national interests or public security and order (lit. c)
7 In c), the impairment of national interests or public security and order is stated as a ground for refusal. This ground for refusal was not originally provided for by the Federal Council, but was added by Parliament. This also explains why the dispatch on the 2012 amendment to the Anti-Money Laundering Act does not comment on c).
A. Adverse effect on national interests
8 MROS bases its application of lit. c on its long-standing internal practice, since it applied the ground for refusal of adverse effect on national interests under the then-current version of Art. 26 of the Money Laundering Act. Many possible scenarios are conceivable under the impairment of national interests, but in practice the prohibition of information to a home or country of origin of persons who have applied for asylum in Switzerland or are to be qualified as recognized refugees or persons in need of protection, as laid down in Art. 26 para. 1 MGwV, is of relevance. In addition, requests from foreign FIUs will also be rejected if the requested information could endanger the life or physical integrity of a person.
B. Adverse effects on public security and order
9 The term “public security” is a fundamental concept of police law. It refers to the protection of the inviolability of the objective legal system, the legal interests of individuals and state institutions. The term “public order” (ordre public) refers to “the fundamental principles of the values of a state” and thus the basic principles of the Swiss legal system. MROS examines requests for information from foreign FIUs in accordance with the principles set out in Art. 2 IMAC. For example, no information will be provided to a foreign FIU if it could lead to the death penalty or torture of a person concerned. Similarly, no information will be provided if the request is politically motivated. In practice, however, this is not always easy to determine and requires the Swiss reporting office to have a solid knowledge of the domestic affairs of the requesting state (e.g. its political system, institutions, the independence and impartiality of its judiciary, and respect for fundamental rights).
Bibliography
Beuret Arnaud, Kommentierung zu Art. 31 GwG, in: Kunz Peter V./Jutzi Thomas/Schären Simon (Hrsg.), Stämpflis Handkommentar, Geldwäschereigesetz (GwG), Bern 2017.
Naegeli Vera, Kommentierung zu Art. 31 GwG, in: Hsu Peter Ch./Flühmann Daniel (Hrsg.), Basler Kommentar, Geldwäschereigesetz, Basel 2021.
Ordolli Stiliano, Le Bureau de communication en matière de blanchiment d’argent: évolution récente et perspectives, in: Augsburger-Bucheli Isabelle (Hrsg.), Blanchiment d’argent : actualité et perspectives suisses et internationales, 2014, S. 45–80.
Thelesklaf Daniel/Ordolli Stiliano, Kommentierung zu Art. 31 GwG, in: Orell Füssli Kommentar, GwG Kommentar, 3. Aufl., Zürich 2019.
Materials
Botschaft zur Änderung des Geldwäschereigesetzes vom 27.6.2012, BBI 2012 6941 ff., abrufbar unter https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2012/1031/de/pdf-a/fedlex-data-admin-ch-eli-fga-2012-1031-de-pdf-a.pdf, besucht am 1.8.2024.
Meldestelle für Geldwäscherei (MROS), Jahresbericht 2017, April 2018, https://www.fedpol.admin.ch/fedpol/de/home/kriminalitaet/geldwaescherei/publikationen.html, besucht am 1.8.2024.
Meldestelle für Geldwäscherei (MROS), Jahresbericht 2023, Mai 2024, https://www.fedpol.admin.ch/fedpol/de/home/kriminalitaet/geldwaescherei/publikationen.html, besucht am 1.8.2024.