SWITZERLAND Law and Practice Contributed by: François Micheli, Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
Bribery of Foreign Public Officials The active and passive bribery of foreign public offi - cials is a punishable offence pursuant to Article 322 septies of the SCC. With regard to the constituent elements common to all types of bribery, reference should be made to the preliminary remarks. The active and passive bribery of foreign public offi - cials occurs when an undue advantage is offered, given or promised to ‒ or respectively demanded, accepted or (the promise of which is) secured by – the following where they are acting for a foreign state or international organisation: • members of a judicial or other authority; • public officials; • officially appointed experts, translators or interpret - ers; • arbitrators; or • members of the armed forces. In some foreign jurisdictions, public officials are allowed to have their own economic activity, aside from their duties as civil servants. Similarly, it is not unusual for an individual who holds no official posi - tion as a civil servant to nevertheless be known to be influential with respect to some public policies. These examples show that the enforcement of the prohibi - tion of bribery of foreign civil servants is by no means easy in practice. Bribery of Private Individuals Not only has the active and passive bribery of Swiss (Articles 322 ter and 322 quater of the SCC) and for - eign public officials (Article 322 septies of the SCC) been forbidden since 2016, but the active and passive bribery of private individuals is also forbidden (as per Articles 322 octies and 322 novies of the SCC). Pursuant to Article 322 octies, paragraph 1 of the SCC, any person is criminally liable if said person offers, promises or gives an employee, partner, agent or any other auxiliary of a third party in the private sec - tor an undue advantage in order that they carry out (or fail to carry out) an act in connection with their official activities that is contrary to their duties or dependent on their discretion. As the constituent elements cor -
In Swiss anti-corruption law, the position of a pub - lic official is assessed on the basis of the functional notion of a public official. Employees of state-con - trolled companies are therefore included in such notion. In contrast to active bribery, passive bribery does not include members of the armed forces. The same is valid for the acceptance by Swiss public officials of an undue advantage. By mirroring the offering (promising or giving), the Swiss public official demands, secures the promise of or accepts the undue advantage. Under Articles 322 quinquies and 322 sexies of the SCC, the granting to – and acceptance by – Swiss public officials of an undue advantage differs from active and passive bribery insofar as the undue advan - tage must be offered, promised or given in order that the Swiss public official carries out their official duties. Thus, in contrast to active and passive bribery, the offering, promising or giving of an undue advantage is not linked to a concrete – or at least determinable – consideration of the Swiss public official. Neverthe - less, the undue advantage granted needs to be suit - able (or sufficient) to influence the carrying out of the Swiss public official’s official duties. In contrast to active and passive bribery pursuant to Articles 322 ter and 322 quater of the SCC, the grant - ing to ‒ and acceptance by ‒ Swiss public officials of an undue advantage refers only to the future exercise of the public official’s official duties. It is worth noting that the granting to and acceptance by Swiss public officials of an undue advantage (as per Articles 322 quinquies and 322 sexies of the SCC) only applies to Swiss public officials and does not involve third parties. Facilitation payments – that is, smaller payments made to secure or expedite the performance of a rou - tine or necessary action to which the payer has legal or other entitlement – could, in principle, fall within the scope of the offences of granting to and acceptance by Swiss public officials of an undue advantage. How - ever, negligible advantages that are common social practice do not constitute undue advantages (Article 322 decies, paragraph 1 (b) of the SCC).
244 CHAMBERS.COM
Powered by FlippingBook