The criminal liability chain and money laundering by omission

Allnews – April 2026
Théo Goetschin & Matthieu Tkatch

In criminal law, inaction does not, in principle, constitute a criminal act. However, the law, a contract or certain situations may create a position of guarantor involving a legal obligation to act which, if not fulfilled, gives rise to a criminal risk. This constitutes the commission of a criminal offence by omission (Art. 11 of the Swiss Criminal Code (SCC)). Where this duty falls on the company, it may be attributed to a natural person where that person holds certain positions or functions (Art. 29 SCC).

In the field of financial intermediation, and more generally in the banking sector, the AMLA constitutes the main body of regulations detailing the duties of various actors in the fight against money laundering. Under these rules, the financial intermediary must first and foremost avoid breaching the duties of clarification and reporting, amongst other monitoring obligations. However, the criminal consequences provided for by this Act (Articles 37 and 38 AMLA) are no longer the only risk that financial intermediaries must take into account.

Indeed, in 2010, the Federal Supreme Court (FSC) established in a landmark ruling¹ that it is possible to commit an act of money laundering by omission through the mere breach of anti-money laundering supervisory rules. In doing so, the FSC held that these rules established, for the financial intermediary, a position of guarantor entailing a duty to act, which translates into a positive duty to cooperate actively with the competent authorities. A breach of this duty to act could thus be equated with an act of money laundering by omission.

However, this case law addresses only part of the equation. Indeed, criminal proceedings relate not only to the criminal act (objective element of the offense) but also to the perpetrator’s intent (subjective element of the offense). Yet, a conviction for money laundering under Article 305bis of the SCC requires the perpetrator’s intent, at the very least in the form of conditional intent (dolus eventualis). This threshold is reached as soon as the perpetrator considers it probable that the assets in question derive from a crime but deliberately refrains from carrying out any further investigation in order to avoid uncovering the truth. In this scenario, the financial intermediary acts with conditional intent and commits the offence. Conversely, if they fail to realise, through negligence, that the assets are of criminal origin, the constituent elements of the offence are in principle not met.

In a more recent judgment² involving a client advisor at a Zurich bank, the FSC clarified the relationship between breaches of supervisory rules and money laundering by analysing the issue from the perspective of criminal intent. Without calling into question the principles mentioned above, the FSC considered that, in the present case, even though the advisor should have carried out more thorough checks in accordance with his professional obligations, this negligence was not sufficient, in itself, to conclude that he knew, or should have presumed, that the funds were of criminal origin. In other words, mere failure to comply with due diligence obligations is not sufficient to establish a conscious acceptance of the risk of participating in the concealment of the criminal origin of funds and, consequently, to secure a conviction for money laundering.

Whilst this case law is appropriate, it does not mean that any guarantor may act negligently with complete impunity and take refuge behind ignorance of the potentially criminal origin of funds. Indeed, intent, as well as the analysis of the alleged act itself, will always depend on evidence and procedural context. A diligent financial intermediary, and in particular its compliance department, will therefore ensure strict adherence to the documentation and requirements provided for by the AMLA, if only to be able to defend itself adequately in any legal proceedings brought against it.

Finally, it is important to note that these considerations essentially concern only the perpetrator of the offence as a natural person. Money laundering is indeed distinctive in that it may be attributed, under Article 102(2) SCC, to the company in which the perpetrator was operating, where the company has failed to take all reasonable and necessary organisational measures to prevent the commission of the offence. This was, in fact, the situation faced by an American bank in the most recent case cited. In practice, two different analyses must therefore often be carried out simultaneously: one focussing on the employee’s conduct, the other on the company’s organisational framework. This subject will be explored in the next article in the series.

¹FSC judgment 6B_908/2009 of 3 November 2010.
²FSC judgment 6B_1180/2023 of 24 September 2024.

Théo Goetschin
Counsel, Genève

Matthieu Tkatch
Associate, Genève

Members of FBT’s White-Collar Crime & Litigation and Arbitration groups