The criminal liability chain and failure to report to MROS

The fight against money laundering relies largely on the duty for financial intermediaries to report to the Money Laundering Reporting Office Switzerland (MROS) any business relationships or transactions in respect of which there are reasonable grounds for suspicion within the meaning of Article 9 of the Anti-Money Laundering Act (AMLA). This duty to report supplements the existing provision on the right to report set out in Article 305^ter, paragraph 2, of the Swiss Criminal Code (CC).

A breach of the duty to report constitutes a criminal offence, punishable by a fine of up to CHF 500,000 in the case of intentional commission and CHF 150,000 in the case of negligence (Art. 37 AMLA).

Within a financial intermediary, the duty to report rests with specific individuals designated by law or identified through the institution’s internal organisation and policies. Criminal liability has traditionally been considered to apply primarily to members of the management or heads of the legal or compliance departments¹.

However, recent practice by the criminal justice authorities shows that this approach is now too restrictive. A breach of the duty to report may also concern the relationship manager, who constitutes the first line of defence in the fight against money laundering, as well as of the compliance staff who do not hold a managerial position.

As an example, let’s suppose that a relationship manager becomes aware that a client, or the beneficial owner of an account, is subject to negative press implicatingthem in corruption or money laundering. Such information requires the employee to take the steps set out in their institution’s internal procedures, in particular by seeking the necessary clarifications and involving the relevant departments. Simply ignoring this information or failing to pass it on to the relevant authorities may, depending on the circumstances, expose the relationship manager to criminal proceedings for breach of the duty to report under Articles 9 and 37 AMLA.

However, the various employees are not the only parties concerned. The legal framework also provides for mechanisms whereby the financial intermediary itself may be required to bear the financial penalty. Article 49 of the FINMA Act allows for the prosecution of individuals to be waived and, instead, for the company to be ordered to pay the fine where identifying the person responsible for the offence would be disproportionate and a fine of up to CHF 50,000 is envisaged.

In most cases, criminal proceedings initiated by the Federal Department of Finance (FDF) frequently follow a report by FINMA and proceed as a continuation of, or even in parallel with, administrative proceedings conducted by said authority. This interplay raises, in particular, the question of the use, in criminal proceedings, of statements obtained by FINMA in the course of its supervisory duties.

In a recent judgment concerning the unauthorised conduct of an activity subject to FINMA supervision, the Swiss Supreme Court ruled that statements obtained by the regulator are inadmissible in criminal proceedings where the person concerned was not informed of their right against self-incrimination (the principle of ‘nemo tenetur se ipsum accusare’)².

Another interesting aspect is also worth considering. The offence set out in Article 37 AMLA constitutes a continuing offence and is subject to a seven-year limitation period. The duty to report does not necessarily end with the termination of the business relationship; rather, it continues for as long as the assets concerned may still be identified and seized. It is only from that point in time that the statute of limitations begins to run. Since the threshold for ‘reasonable suspicion’ triggering the duty to report has been progressively lowered over the years, a breach initially committed several years earlier and continuing until 2026 will be assessed in light of the current reporting standards.

Finally, financial intermediaries are now faced with an additional challenge. In September 2025, MROS published a report on ‘negative typologies’, aimed at improving the quality of suspicious activity reports by highlighting certain cases in which reports were based on insufficiently clarified facts. Whilst this objective is entirely legitimate, it creates a practical tension. On the one hand, the authorities encourage financial intermediaries to avoid submitting reports that are inadequately substantiated; on the other hand, a failure to report may expose the employees concerned to criminal liability. Given the criminal risks involved, it is likely that financial intermediaries will continue to file reports that MROS may not consider appropriate.