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Reto Luthiger
Mark Montanari
The Swiss Federal Tribunal has issued a landmark ruling on 21 July 2025, clarifying the limits of using evidence from FINMA proceedings in criminal prosecutions. In decision 7B_45/2022, the Court held that questionnaires submitted to FINMA without informing the addressee of their right not to self-incriminate (nemo tenetur) are inadmissible in criminal trials – in principle, the duty to provide information under Art. 29 para. 1 FinMaSA ends where answering could expose them to criminal prosecution. This judgment strengthens procedural safeguards for supervised entities and unregulated companies that have come under the scrutiny of FINMA and will require FINMA and prosecutors to adapt their practices.
On 21 July 2025, the Swiss Federal Tribunal rendered an important judgment that will likely change the way evidence from FINMA supervisory proceedings can be used in subsequent criminal prosecutions. In its decision 7B_45/2022, the Court annulled a conviction for unauthorised financial intermediation, holding that questionnaires submitted to FINMA could not be used as incriminating evidence because the addressee had not been informed of the right not to self-incriminate.
Background
The case concerned an individual who had been convicted for exercising financial intermediary activities without authorisation under the Financial Market Supervision Act (FinMaSA) and the Anti-Money Laundering Act (AMLA). During a FINMA pre-enforcement review, the company involved had returned AML and FINMA questionnaires signed by the individual. These forms later became central pieces of evidence in the criminal proceedings led by the Federal Department of Finance (DFF) and the Federal Criminal Court.
The Federal Tribunal overturned the conviction, stressing that the questionnaires had been specifically created at FINMA’s request. As such, they were not pre-existing documents but rather new self-incriminating statements, which are protected by the nemo tenetur principle.
The Court’s Reasoning
At the heart of the judgment lies the interaction between the duty to cooperate in administrative law and the right not to incriminate oneself in criminal law.
The Court recalled that supervised persons and unregulated companies that have come under scrutiny of FINMA must according to article 29 of FinMaSA in principle provide FINMA with information necessary for fulfilment of FINMA’s supervisory function. However, when such information may directly expose the person or the entity to criminal liability, the right to a fair trial under article 6 of the European Convention on Human Rights (ECHR) and article 32 of the Swiss Constitution prevails. FINMA should therefore have expressly warned the addressee that he was not obliged to provide incriminating information.
Because this did not happen, and because the questionnaires which were answered and re-sent to FINMA were later used by the DFF as key incriminating evidence, the Court found a violation of the nemo tenetur principle. The consequence is clear: the questionnaires and the information provided therein are deemed inadmissible in criminal proceedings. The matter was sent back to the lower court to assess whether sufficient other evidence existed to sustain a conviction.
What is new and why it matters
While earlier case law had tolerated a relatively close cooperation between FINMA and criminal prosecutors, this is the first time the Federal Tribunal has drawn a firm line: evidence obtained in administrative supervision cannot automatically be relied upon in criminal trials if fundamental rights were not safeguarded.
For FINMA, this means that it will likely need to adapt its practice and inform addressees of their right to remain silent when requesting information that could lead to criminal exposure. For the prosecuting authorities, it raises the evidentiary threshold, as they can no longer rely uncritically on FINMA questionnaires. And for supervised entities, entities which come under FINMA’s scrutiny and the managers of the respective entities, the ruling provides stronger protection and a clearer legal basis to contest the admissibility of such evidence.
Practical Takeaways
- Legal representation is key: companies and individuals contacted by FINMA should obtain immediate legal advice before responding to questionnaires.
- Awareness of rights: even in supervisory proceedings, it is legitimate to refuse cooperation where answers could expose one to criminal liability.
- Compliance strategy: organisations should revisit their internal guidelines for handling FINMA inquiries in light of this decision.
Conclusion
The ruling is a milestone in Swiss financial market law. It strengthens the procedural rights of persons and entities in administrative proceedings of FINMA and underlines that FINMA’s supervisory powers cannot override the fundamental principle of nemo tenetur. Going forward, both FINMA and the prosecuting authorities will need to adapt their practices. For market participants, the decision offers enhanced legal certainty and valuable defence arguments in enforcement situations.
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For further information on how this decision may affect your compliance and enforcement risk, please reach out to us.
