Federal Supreme Court, 05.12.2025, 7B_65/2023
Facts
Following a report in 2011, the Office of the Attorney General of Switzerland (OAG) opened an investigation into money laundering (art. 305bis SCC) linked to fraud against the Russian Treasury. In 2021, the OAG closed the proceedings but ordered the confiscation of assets and imposed a compensatory claim of 50,738.78 USD against B. Ltd, whose Swiss accounts were suspected of containing funds of criminal origin. The OAG also rejected the compensation claims filed by the appellants (A. and four companies) for damages resulting from the seizures. The Complaints Chamber did not uphold the compensatory claim or the rejection of the compensation for the seizures.
It merely annulled and remanded the issue of the awarded compensation, without ruling on the merits of the claims for damages related to the seizures. The appellants appealed to the Federal Supreme Court, challenging the compensatory claim and its statute of limitations, and seeking compensation for damages related to the seizures.
Law
The Federal Supreme Court reiterates that a compensatory claim (art. 71 SCC) replaces confiscation when the assets of criminal origin are no longer available and aims to deprive the perpetrator of the illicit economic benefit.
In accordance withart. 70 para. 3 SCC, the right to order the confiscation of assets expires after seven years, unless the prosecution of the underlying offense is subject to a longer limitation period, in which case the latter applies. When the predicate offense is committed abroad, the limitation period for confiscating its proceeds depends on the applicable foreign law. Conversely, money laundering acts committed in Switzerland are subject to Swiss law, including regarding the statute of limitations. In cases of aggravated money laundering (art. 305bis SCC), the period is fifteen years, with an aggravated case being determined based on the specific gravity of the facts (amounts, complexity, international scope).
In consideration 7, the Federal Supreme Court further emphasizes the importance of the principle of good faith in the application of art. 70, para. 2, SCC.
Regarding the mixing of licit and illicit funds, the Federal Supreme Court rejects the proportional method, deeming it excessive, and adopts the residual balance theory (Bodensatz-/Sockeltheorie). Illicit funds form a base layer, with transactions presumed to use licit funds first; a money laundering offense is only committed when this base layer is depleted, unless there is an intentional disposal of the illicit funds.
Finally, according toart. 434 CrimPC, a third party harmed by a seizure is entitled to fair compensation, provided they can prove actual damage. Purely hypothetical loss of earnings is not compensable, unless there is fault on the part of the authority or an unjustified refusal of an appropriate investment.
Application to the specific case
Statute of limitations
The Federal Supreme Court confirms that the statute of limitations is governed by Swiss law, as the final acts of money laundering took place in Switzerland (transfers to accounts). It considers the classification of aggravated money laundering to be justified given the scale (USD 230 million), complexity, and international nature of the scheme. As the fifteen-year limitation period had not expired at the time of the Appeals Chamber's decision, the complaint is dismissed.
Calculation of the compensatory claim
The Federal Supreme Court notes that the OAG and the Appeals Chamber applied the proportional mixing method to calculate the compensatory claim. This method is deemed contrary to federal law. The Federal Supreme Court grants the appeal and remands the case to the lower court for a recalculation using the sedimentation or floor method.
Compensation for seizure
The appellants requested compensation based on a hypothetical 5% annual return on the seized assets. The Federal Supreme Court upholds the Appeals Chamber's decision, rejecting the request. The appellants failed to prove actual and concrete damages. They did not demonstrate that the OAG had mismanaged the funds or refused investment proposals. The claim based on a mere hypothetical loss of earnings is therefore rejected.
Outcome
The Federal Supreme Court partially grants the appeal. It annuls the decision of the Federal Criminal Court and remands the case for a new ruling on the amount of the compensatory claim, applying the sedimentation method ("Bodensatz-/Sockeltheorie"). The remainder of the appeal is dismissed.
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