The Federal Supreme Court has clarified the process of confiscation in cases involving mixed assets

In ruling 7B_65/2023 on 5 December 2023, the Federal Supreme Court laid down a fundamental principle for the first time, governing the method to be used to determine confiscations and claims for compensation in cases where funds obtained through criminal activity are held alongside legal funds in the same account. The proportionality method previously employed by the criminal authorities was explicitly rejected. This would mean that every account movement would be considered 'contaminated' on a pro rata basis, which could affect the entire legal economy. This would be incompatible with the guarantee of property rights and legal certainty.

Instead, the Federal Supreme Court prefers the balance principle in the bottom-up variant: illegal funds form a fixed base at the bottom of the account. As long as this base amount is not touched, legal transactions above it remain unaffected while the criminal amount remains subject to confiscation. However, to prevent abuse, the Court has introduced a corrective measure: if the account holder, knowing the illegal origin of the assets, disposes of them in a way that conceals or attacks the criminal amount, this can be classified as money laundering. In such cases, the funds used are considered contaminated and may form the basis of a claim for compensation. The lower court must now recalculate the compensation claim in accordance with these principles.