Bär & Karrer Secures a Major Victory Before the Swiss Federal Supreme Court in an Important Criminal Tax Case

Bär & Karrer has successfully represented a client, a businessman in the commodities sector, before the Swiss Federal Supreme Court in a case related to withholding tax.

The client had been facing criminal proceedings led by the Office of the Attorney General ("OAG") and, in parallel, criminal tax proceedings led by the Federal Tax Administration. Both proceedings were based substantially on the same facts but involved different offences. The proceedings were never joined. The OAG issued closing decisions – tantamount to an acquittal – in 2015 and 2021 while the criminal tax proceedings went on. The Cantonal Court of First Instance and the Cantonal Court of Appeal successively convicted the client for tax fraud. The client appealed the decision of the Court of Appeal before the Swiss Federal Supreme Court.

In its decision dated 6 February 2025 (ref. 6B_1230/2023), the Swiss Federal Supreme Court ruled that the client's conviction in the criminal tax proceedings breached the prohibition of double jeopardy (ne bis in idem). The Federal Supreme Court emphasized that the identity of facts was the crucial factor, irrespective of the different offences. Moreover, the Federal Supreme Court held that it would have been possible to consolidate both proceedings.

Consequently, the Swiss Federal Supreme Court annulled the client's conviction and remanded the case to the cantonal court to formally close the proceedings.

The legal team comprised Saverio Lembo, Andrew Garbarski, Louis Frédéric Muskens, Julien Renaud, and Dylan Frossard (all White Collar Crime/Litigation).