Federal Supreme Court, 25.09.2026, 7B_469/2025
Facts
A., the beneficiary of an irrevocable discretionary trust holding B. Ltd, accuses several banking parties, including the trustee and a Geneva-based bank, of misappropriating her personal assets by transferring them to an account held in the name of B.________ Ltd, of which she was the beneficial owner. She filed a criminal complaint for fraud, aggravated criminal mismanagement, and money laundering, citing, among other things, undue management fees, exchange rate losses, and lost earnings. The Geneva Public Prosecutor's Office issued a non-prosecution order, which was upheld by the cantonal court. The complainant appealed to the Federal Supreme Court to request the opening of a criminal investigation (recitals 1.3 and 2.4).
Law
According toArt. 81 para. 1 let. b no. 5 of the Federal Supreme Court Act (LTF), the complainant must demonstrate that the contested decision could influence her civil claims. In a trust, the assets legally belong to the trustee, who in principle holds the status of the injured party within the meaning ofArt. 115 of the Criminal Procedure Code (CPP). However, when the trustee themselves is suspected of an offense, this status may be extended to the beneficiaries. In this case, the civil claims, which were sufficiently quantified and linked to the alleged conduct, allow for the recognition of standing to appeal (recitals 1.1-1.3).
Art.Art. 310 para. 1 let. a of the Criminal Procedure Code (CPP) authorizes a non-prosecution order when the constituent elements of the offense are clearly absent. According to the principle of *in dubio pro duriore*, the investigation must proceed if a conviction appears more likely than an acquittal or if the probabilities are equivalent, particularly in cases of serious offenses. The Federal Supreme Court examines, in particular, whether the cantonal authority could, without acting arbitrarily, consider the evidentiary situation sufficiently clear to refuse to open an investigation (recitals 2.1-2.2).
Fraud (Art. 146 SCC) requires cunning deception, an error, an act of asset disposal, damage directly caused by that act, and an intent to obtain unlawful gain. Cunning can result from a web of lies, fraudulent maneuvers, or the exploitation of a relationship of trust. The damage must result immediately from the act of disposal performed by the deceived party, without further intervention by the perpetrator (recital 2.3).
Criminal mismanagement (Art. 158 of the Criminal Code (CP)) requires a management position characterized by decision-making autonomy, the breach of a management duty, damage, and intent. Its aggravated form implies an intent to obtain unlawful gain. As for money laundering (Art. 305bis of the Criminal Code (CP)), it requires, among other things, the existence of assets derived from a predicate crime or a qualified tax offense (recitals 3.1-3.2).
Application to the specific case
Regarding the fraud charge, the appellant had been informed of the transfer to the trust account and had not objected to it for ten years. Her banking instructions did not specify any particular account number, and the funds had been used, among other things, to finance her personal expenses. Consequently, no decisive error or cunning deception could be established. Furthermore, bank fees, exchange rate losses, and missed performance constituted indirect consequences of the transfer, excluding the immediate damage required by Art. 146 of the Criminal Code (recitals 2.5.1-2.5.3).
Regarding criminal mismanagement, no autonomous management power was established for the party who communicated the bank details. Moreover, the appellant failed to demonstrate any concrete breach of the trust managers' obligations. The mere collection of commissions was not sufficient to characterize management contrary to the interests of the beneficiaries, especially since the account had recorded positive performance. The absence of a predicate offense also justified the non-prosecution order for money laundering (recital 3.3).
Outcome
Appeal dismissed to the extent that it is admissible. The non-prosecution order is upheld, as a conviction appears significantly less likely than an acquittal. The court costs of 3,000 francs are charged to the appellant, with no award of legal fees (recitals 2.5.3, 3.3, and 4).