Nadja Capus and Maëlle Le Boudec
Virtual currency, or cryptocurrency, has become an important payment medium. Bitcoin is such a cryptocurrency and due to its importance, it is the primary focus of this chapter. It shall be discussed – from a Swiss criminal law perspective – which criminal offences may be committed with regard to this cryptocurrency, and which criminal law provisions may come into play in order to sanction the criminal behaviour. Some procedural aspects shall also be addressed – still based on the Swiss legal system as well as the relevant points of reference for the extra-/territorial jurisdiction under Swiss criminal law, which is an important aspect in particular with regard to the virtual nature of a cryptocurrency. Prosecution of offenders whose criminal behaviour involves bitcoins is limited in that bitcoins may not be the objects of any offence whose constituent elements require the presence of a movable good, since bitcoins have no physical equivalent in the form of coins or banknotes. ‘Theft’ of bitcoins is inconceivable under Swiss criminal law. But bitcoins fall within the scope of provisions related to data or with financial assets: therefore, offences committed in relation to bitcoins are prosecutable. However, current enforcement takes place barely by analogy and legal provisions will have to be developed to more adequately encompass bitcoin related offences. It is important to note that selling and purchasing bitcoins, as well as other activities relating to bitcoin trading platforms used for transferring funds or bitcoins, fall within the scope of the Anti-Money Laundering Act. We conclude, in sum, that virtual currencies do not evolve in a legal void, but it might become necessary to develop criminal law in order to capture more precisely the virtual nature and distinctive properties of cryptocurrencies. But, on the other hand, we observe that the actual lack of legal protection is precisely a consequence of the deliberate departure of bitcoin users away from government involvement towards a less regulated and less protected world, one that bitcoin users seem to seek. Asking than for an enhanced protection by criminal law would somehow be a paradox, as criminal law is the instrument of the monopolized public authority ‘par excellence’.