312.4
Federal Act
on the Sharing of Confiscated Assets
(SCA Act)
of 19 March 2004 (Status as of 23 January 2023)
Preamble
The Federal Assembly of the Swiss Confederation,
based on the Articles 54 paragraph 1 and 123 paragraph 1 of the Federal Constitution1,
and having considered the Federal Council Dispatch of 24 October 20012,
decrees:
Chapter 1 General Provisions
Art. 1 Subject matter
This Act governs the sharing of confiscated objects and assets, including compensatory claims (confiscated assets), among the cantons, the Confederation and foreign States.
Art. 2 Scope
This Act applies to the sharing between the cantons and the Confederation of assets that are confiscated under federal criminal law; it does not apply if the assets are confiscated under the Military Criminal Code of 13 June 19273 or the Cultural Property Transfer Act of 20 June 20034.
It also applies to the sharing of assets between Switzerland and foreign States if the assets are confiscated under Swiss law within the framework of international mutual legal assistance in criminal matters or are subject to confiscation or a comparable measure under foreign law.
Chapter 2 Sharing between the Cantons and the Confederation
Section 1 Determination of Shares
Art. 3 Minimum amount
Sharing proceedings under Articles 4–10 are initiated if the gross value of the confiscated assets amounts to at least 100 000 francs.
Art. 4 Net amount
Before sharing, the following costs shall be deducted from the gross amount of the confiscated assets, provided such costs are likely to be irrecoverable:
cash expenses, namely the costs of translation and interpretation, enforced appearance, expert opinions, execution of requests for mutual legal assistance, telephone surveillance and fees of the duty defence lawyer and other expenses in connection with the collection of evidence;
the costs of detention pending judgment;
two thirds of the anticipated costs of enforcing unsuspended custodial sentences;
the costs of managing the confiscated assets;
the costs of realising the confiscated assets and enforcing compensatory claims.
Assets awarded to the persons harmed pursuant to Article 60 paragraph 1 letters b and c of the Swiss Criminal Code5 are also deductible.
Art. 5 Distribution key
The net amount of the confiscated assets shall be shared as follows:
5/10 for the public entity that ordered the confiscation;
3/10 for the Confederation;
2/10 for the cantons in which the confiscated assets are located, distributed in proportion to the value of the assets located in the respective cantons.
If the criminal proceedings are conducted in part by the Confederation and in part by a canton, the share of 5/10 under paragraph 1 letter a shall be divided equally between them.
The canton in which assets are seized with a view to enforcing a compensatory claim (Art. 59 para 2 no 3 Swiss Criminal Code6) shall be placed on an equal footing with the canton in which the confiscated assets are located, to the extent that the proceeds from their realisation serve to cover the compensatory claim. The 2/10 share of the compensatory claim, the collection of which was not effected via the seized assets, shall be distributed among the other participating public entities in proportion to the shares already due to them.
The participating cantons and the Confederation may conclude agreements regarding their shares that deviate from paragraphs 1–3.
Section 2 Sharing Proceedings, Legal Remedies, Enforcement and Archiving7
Art. 6 Sharing proceedings
The Federal Office of Justice (FOJ) shall be notified of legally binding decisions on the confiscation of assets:
in accordance with Article 61 of the Criminal Records Register Act of 17 June 20168, if the confiscation decision is to be entered in the criminal records register together with a decision under criminal law;
within ten days by the cantonal or federal authority in the case of an independent confiscation decision with a gross value of at least 100’000 francs.9
The FOJ shall set the cantonal or federal authorities a deadline by which they must submit to it the documents required for the sharing decision, in particular lists of costs and allocations in favour of the persons harmed (Art. 4) and of the public entities likely to be involved in the sharing proceedings (Art. 5).10
The FOJ11 shall instruct them on how to make the confiscated assets available to it.
It shall set a deadline for the cantonal authorities and, in matters that fall under federal jurisdiction, for the Office of the Attorney General of Switzerland or the competent federal administrative authority, to submit their opinion.
If the gross amount of the confiscated assets exceeds 10 million francs, the FOJ shall obtain the opinion of the Federal Finance Administration.
The FOJ shall issue a decision on the amounts due to the participating cantons and the Confederation.
The procedure is governed by the Federal Act of 20 December 196812 on Administrative Procedure.
Art. 7 Legal remedies13
Legal remedies are governed by the general provisions on the administration of federal justice.14
The cantons affected by the decision are entitled to appeal.
Art. 8 Implementation of the sharing decision
Once the sharing decision has become legally binding, the FOJ shall transfer the amounts to the participating cantons and the Confederation.
Art. 8a15 Archiving of the case file
The FOJ shall maintain a case file for each confiscation decision of which it is notified. Once sharing has been completed, the case file in its entirety shall be sent to the Federal Archives.
Section 3 Special Provisions
Art. 9 Amendment of the confiscation decision
If the confiscation decision is amended after the sharing and the full or partial restitution of the confiscated assets is ordered, the canton of judgment or, in matters adjudicated by a federal authority, the Confederation may demand the restitution of these assets from the public entities that participated in the sharing in proportion to the amounts transferred to them.
Art. 10 Subsequent sharing of deducted amounts
If the cantonal or federal authorities are subsequently reimbursed for costs deducted or payments made to the persons harmed (Art. 4) or where a cost saving arises in the execution of sentences (Art. 4 para. 1 let. c), this amount shall be paid to the FOJ if it exceeds 10 000 francs.
The FOJ shall proceed with the sharing of this amount in accordance with the decision issued under Article 6 paragraph 6.
Chapter 3 Sharing between States
Art. 11 Principles
The Confederation may conclude agreements on the sharing of assets that are confiscated:
by Swiss authorities based on Swiss law in cooperation with foreign States;
by foreign authorities based on foreign law in cooperation with Swiss authorities.
Where assets are confiscated in Switzerland in the context of international cooperation on criminal matters, they may, as a rule, only be shared with the foreign State if that State grants reciprocity.
This Act does not grant foreign States any legal entitlement to a share of confiscated assets.
Art. 12 Negotiations
If, as a result of, or with a view to confiscation, the sharing of assets with a foreign State comes into consideration, the cantonal or federal authorities shall inform the FOJ.
The FOJ shall conduct the negotiations with the foreign authorities on the conclusion of a sharing agreement. It shall first consult the competent cantonal authorities and, in matters falling within the jurisdiction of federal authorities, the Office of the Attorney General of Switzerland or the competent federal administrative authority and shall inform the competent directorate of the Federal Department of Foreign Affairs.
The sharing agreement must contain the sharing modalities and the distribution key. As a rule, the confiscated assets shall be shared equally between Switzerland and the foreign State. This rule may be deviated from in justified cases, and restitution may be made to the foreign State, in particular in view of the nature of the offence giving rise to confiscation, the location of the assets, the significance of the contributions made by the States involved to the investigation, the prevailing practices or assurances of reciprocity between Switzerland and the foreign State, the international context and the significance of the prejudiced interests of the foreign State.
Art. 13 Conclusion of the sharing agreement
The FOJ shall conclude the sharing agreement. If the gross value of the assets confiscated or to be confiscated exceeds 10 million francs, it shall obtain the approval of the Federal Department of Justice and Police; the latter shall first consult the Federal Department of Finance.
In cases of political importance, the FOJ shall obtain the opinion of the competent directorate of the Federal Department of Foreign Affairs before concluding the sharing agreement.
Where Swiss authorities have jurisdiction to confiscate the assets, the FOJ shall obtain the consent of the competent authorities of the cantons concerned and of the Confederation. In the event of disagreement, the Federal Council shall make the final decision.
Art. 14 Enforcement of the sharing agreement
Assets located in Switzerland that are the subject of the sharing agreement shall be handed over to the FOJ; the latter shall transfer to the foreign State the share due to that State. It may instruct the cantonal authorities to transfer this share directly to the foreign State.
If the assets are located abroad, the share to which Switzerland is entitled under the sharing agreement shall be transferred to the FOJ.
Art. 15 National sharing
If the assets are confiscated in Switzerland by Swiss authorities, the share due to Switzerland under the sharing agreement shall be shared in accordance with Article 5.
If confiscation is ordered by a foreign State, the portion of 5/10 in accordance with Article 5 paragraph 1 letter a shall be shared equally between the cantons that carried out investigations as part of a request for mutual legal assistance or extradition or that spontaneously transmitted evidence to the foreign authority and, if a federal authority other than the FOJ was involved, the Confederation.
If the assets are located abroad, the portion of 2/10 in accordance with Article 5 paragraph 1 letter c shall be distributed among the other participating public entities in proportion to the shares due to them.
The FOJ shall decide on the distribution of the amount due to Switzerland under the sharing agreement. Articles 4 and 6 –10 apply mutatis mutandis.
Chapter 4 Final Provisions
Art. 16 Amendment of current legislation
The amendment of current legislation is regulated in the annex.
Art. 17 Transitional provisions
The provisions on the national sharing of confiscated assets (Chapter 2) apply to confiscation decisions that become legally binding after this Act comes into force.
The provisions on international sharing (Chapter 3) apply to sharing proceedings in which the sharing agreement is signed after this Act comes into force, even if the confiscation decision had become legally binding before this Act came into force.
Art. 18 Referendum and commencement
This Act is subject to an optional referendum.
The Federal Council shall determine the commencement date.
Commencement date: 1 August 200416
Amendment of current legislation
(Art. 16)
The federal acts mentioned below are amended as follows:
…17