The investor can report the adviser to the competent criminal investigation authority for investment fraud, misappropriation or disloyal business management [note: depending on the elements of the offence there is an application period of three months for criminal proceedings].
The criminal complaint is often used as a means to apply pressure [refrainment following surrender of assets]. Whether the criminal complaint is the correct method for the individual case must be checked closely in accordance with the circumstances. If a number of investors act simultaneously and file a complaint they can often put a stop to the fraudster’s game.
Validating the loss in the criminal proceedings
- The aggrieved investor can be constituted as a private complainant in the criminal proceedings.
- He is awarded title under civil law in the criminal proceedings if the fraudster admits responsibility or the disputed asset is liquid.
Confiscation of the object of the crime and its use in favour of the aggrieved party
The investigating judge can under certain circumstances confiscate funds which can be used later by the denouncing investor (Swiss Penal Code [StGB] Articles 70, 71)
The court awards a sum to the aggrieved party up to the amount of the compensation claim (Swiss Penal Code [StGB] Article 73):
- The financial penalty or fine paid by the convicted party;
- Confiscated objects or assets or the proceeds of their sale less the cost of sale;
- Compensation claims;
- The amount of bail.
With the exception of malicious reporting, criminal proceedings are free of charge to the summoning party.
The summons is fast and effective in relation to confiscation; however, in the event of subsequent insolvency, coordination problems may arise with regard to the claims of other aggrieved parties.