Professional fraud, violation of the FINMA Act, sentencing, and compensatory claims

Federal Supreme Court, 11.02.2026, 6B_803/2025

Facts

In the first instance, the Zug Cantonal Criminal Court convicted A.________ of multiple counts of professional fraud and violations of the Financial Market Supervision Act (FINMASA), sentencing him to five years and four months of imprisonment and ordering a compensatory claim of 300,000 CHF. On appeal, the Zug Cantonal Court upheld the primary charges but acquitted A.________ on certain secondary counts. However, it increased the sentence to seven years of imprisonment and raised the compensatory claim to 798,296.20 CHF. The Cantonal Court also ordered the liquidation of a seized property in Spain. A.________ has filed a criminal appeal with the Federal Supreme Court. He seeks acquittal on the charges of professional fraud and FINMASA violations, a re-sentencing that accounts for a violation of the principle of due speed, as well as a reduction of the compensatory claim and the cancellation of the property sale.

Law

The Federal Supreme Court reiterates several fundamental legal principles:

1. Principle of accusation (art. 9 and 325 CrimPC): The indictment defines the scope of the trial (delimitation function) and must inform the accused of the facts alleged against them with sufficient precision to allow them to prepare their defense (information function). The court is bound by the facts described in the indictment, but not by their legal classification.
2. Fraud (art. 146 SCC): Fraud requires cunning deception that misleads the victim and induces them to perform an act detrimental to their financial interests, with the intent of unlawful enrichment. Cunning is established when the perpetrator constructs a web of lies, employs fraudulent maneuvers, or uses artifices. The victim's co-responsibility only excludes the element of cunning if the victim could have avoided the error with a minimum level of attention.
3. Serial offenses: In cases of serial fraud committed using an identical or similar modus operandi targeting a large number of victims, the court may examine the constituent elements of the offense (particularly cunning) globally for all cases, without needing to conduct a detailed analysis for each individual victim.
4. Statute of limitations for FINMASA violations:art. 52 FINMASA provides for a seven-year limitation period for "contraventions" (minor offenses). The Federal Supreme Court must determine whether this provision, as a lex specialis, also applies to the "délits" (misdemeanors) provided for by the FINMASA (such asart. 44 FINMASA), or whether the general rules of the Criminal Code (Art. 97 SCC) take precedence for felonies.
5. Principle of speed (Art. 5 CrimPC): Criminal authorities must conduct proceedings without unjustified delay. A violation of this principle may result in a sentence reduction. Assessing whether the duration was excessive depends on the circumstances of the specific case (complexity of the case, conduct of the parties and authorities, and the severity of the charges).
6. Compensatory claim (Art. 71 SCC): When illegally obtained assets are no longer available for confiscation, the court orders a compensatory claim for an equivalent amount in favor of the State. Its purpose is to prevent the perpetrator from profiting from the proceeds of their offense. The calculation is based on the gross proceeds principle, without deducting any "expenses" incurred to commit the offense.

Application to the specific case

The Federal Supreme Court examines and rejects the appellant's grievances one by one:

1. Regarding the violation of the principle of specificity: The appellant argued that the indictment only covered the "original" acquisitions of B.________ company shares, whereas his conviction was also based on sales via third-party companies. The Federal Supreme Court considers that the term "original" in the indictment served a purely explanatory function to distinguish the Swiss proceedings from foreign ones. The indictment described all fraudulent transactions in sufficient detail, thereby guaranteeing the rights of the defense.
2. Regarding professional fraud (B.________ and G.________ cases):
   1. B.________ case: The Federal Supreme Court confirms that the appellant set up a fraudulent structure. The B.________ company, presented as a promising mining venture in Bolivia, was merely an empty shell. Investor funds were systematically diverted for the appellant's benefit via companies he controlled. The shares sold were worthless. The Federal Supreme Court upholds the approach of the lower court, which treated these acts as serial offenses without requiring an individual analysis of each act of deception.
   2. G.________ case: Similarly, the G.________ online trading system was a pure simulation. Clients deposited funds into demo accounts with no access to the interbank market. It was a Ponzi scheme. The Federal Supreme Court finds that the facts were established without arbitrariness and that the conviction for professional fraud is justified.
3. Regarding the statute of limitations for the FINMA Act offense: The Federal Supreme Court settles the question of the statute of limitations. It rules that the text of Art. 52 FINMA is clear: it applies only to "contraventions" (minor offenses). Since the offense charged (Art. 44 FINMA) is a "felony," the general rules of the Criminal Code apply. As the offense was a continuous felony that ended in May 2015, the applicable limitation period is the new ten-year period (which entered into force in 2014). The criminal prosecution was therefore not time-barred at the time of the first-instance judgment.
4. Regarding sentencing and the principle of speed: The Federal Supreme Court finds that the lower court did not abuse its discretion. Given the extreme complexity of the case (international scope, nearly 200 federal binders), the total duration of the proceedings (nearly nine years) is not so excessive as to justify a sentence reduction greater than the five months already granted. The two-year delay between the oral pronouncement and the written reasoning of the first-instance judgment, while long, is deemed acceptable given the massive workload and the fact that the appellant was no longer in detention. The increase in the sentence on appeal is also deemed lawful, as the public prosecutor had also filed an appeal.
5. Regarding the compensatory claim: The Federal Supreme Court confirms the amount of the compensatory claim. Its increase on appeal does not violate the prohibition of *reformatio in peius*, as the public prosecutor had filed a cross-appeal on this point. The calculation based on the gross proceeds of the offenses is correct: an offender cannot deduct their "business expenses" from the proceeds of their crimes. The decision to order the liquidation of the real estate in Spain to cover the claim is also upheld.

Outcome

The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The appellant is ordered to bear the legal costs.

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