LENLAW is pleased to share a new publication by Dr. Stefan Mbiyavanga and Prof. Nadja Capus on the recovery and restitution of illicitly acquired assets in Switzerland.
In La restitution de biens mal acquis: analyse de l’approche suisse, the authors examine how Swiss law deals with the identification, freezing, confiscation and restitution of illicit assets, with particular attention to corruption proceeds and cross-border asset recovery.
The contribution analyses three principal legal avenues: international mutual legal assistance in criminal matters, Swiss criminal proceedings, and the administrative regime governing illicit assets linked to foreign politically exposed persons.
Switzerland’s experience with illicit assets
Switzerland has a long and controversial history as a destination for illicit assets. At the same time, it has developed a substantial body of law and practice aimed at recovering and returning such assets.
This experience is particularly relevant for states seeking to recover assets lost through corruption, misappropriation or other illicit financial flows. It is also increasingly relevant for jurisdictions that have themselves become financial or logistical hubs for the concealment and reinvestment of illicit assets.
Three routes to restitution under Swiss law
The chapter distinguishes three principal mechanisms for the recovery and restitution of illicit assets:
- international mutual legal assistance, including the transfer of seized assets for confiscation or restitution;
- Swiss criminal proceedings, which may lead to confiscation and restitution where Switzerland has jurisdiction;
- the administrative mechanism for illicit assets, which can operate in exceptional cases where conventional criminal or mutual-assistance proceedings are ineffective.
The analysis also addresses practical difficulties such as dual criminality, the tracing of assets, the evidentiary link between assets and the underlying offence, and the conditions under which assets may exceptionally be returned before a final foreign confiscation judgment.
Unresolved questions in Swiss asset recovery practice
The authors identify several areas in which Swiss law and practice remain uncertain or incomplete.
One concerns the limited use of early restitution through mutual legal assistance. Although Swiss law allows restitution without a final foreign confiscation judgment in exceptional circumstances, this remains rare in practice.
Another concerns the treatment of profits confiscated in cases of transnational corporate bribery. Swiss criminal law gives priority to restitution to the injured party, and Swiss case law recognises that a foreign state may qualify as an injured party in corruption cases. Yet, according to the authors, confiscated corporate corruption proceeds have so far not been restituted to affected states.
The chapter also examines the potential and limitations of Switzerland’s special administrative regime for illicit assets. While this mechanism can permit freezing and confiscation even where conventional criminal proceedings are not viable, its practical application remains exceptional.
Enforcement matters as much as legislation
The authors conclude that effective asset recovery does not necessarily require an ever-expanding set of legal instruments.
Switzerland already has a comparatively broad legal framework. The more fundamental challenge lies in applying existing mechanisms consistently, proactively and effectively — including in the treatment of injured states, international cooperation and the supervision of financial and professional intermediaries.
To the publication
