SWITZERLAND Law and Practice Contributed by: François Micheli, Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
Money Laundering Active and passive bribery of Swiss or foreign public officials (as per Articles 322 ter, 322 quater and 322 septies of the SCC) qualify as felonies and are thus predicate offences to money laundering, according to Article 305 bis of the SCC. In contrast, active and passive bribery of private indi - viduals (as per Articles 322 octies and 322 novies of the SCC) are qualified as misdemeanours and are thus not predicate offences to money laundering. The same is true for the granting to and acceptance by Swiss public officials of an undue advantage (as per Articles 322 quinquies and 322 sexies of the SCC). 2.2 Influence-Peddling By trading in influence, a person misuses their influ - ence over a decision-maker (typically a public official) for a third party in return for any undue advantage. Swiss law does not detail a specific offence with regard to trading in influence. However, if the inter - mediary is a public official, they can be held liable for passive bribery or accepting an undue advantage, if they accept such advantage to influence another pub - lic official. The third party giving the undue advantage can be held liable for active bribery or granting such advantage. However, the undue advantage must be linked to the official activity of the intermediary. It is important to note that, under Swiss law, the grant - ing to and acceptance by public officials of an undue advantage only applies to Swiss public officials. If the intermediary is a private individual, and the pub - lic official whose decision is to be influenced partici - pates in the corruptive scheme and at least implicitly accepts the undue advantage from the intermediary, active and passive bribery can be invoked. Depending on the explicit or implicit agreement between the par - ties, the third party could be held liable for complicity in or incitement to active bribery, the intermediary for active bribery (or complicity in active bribery) and the
respond to the bribery of public officials, reference should be made to the preliminary remarks. It is nevertheless noteworthy that the requirements for the active and passive bribery of private individuals (as defined in Articles 322 octies and 322 novies of the SCC) also apply to the bribery of foreign private indi - viduals. Furthermore, in minor cases, active and pas - sive bribery of private individuals is only prosecuted upon complaint. Cases could be considered minor if: • the sum in tort is not extensive; • the security and health of third parties are not affected by the offence; • there is no multiple or repeated commission of the offence by a member of a group; or • no document fraud has been committed in con - nection with the bribery. General Provisions The general provisions contained in Article 322 decies of the SCC are applicable to every form of bribery in Swiss law. According to Article 322 decies, paragraph 1 of the SCC, the following are not undue advantages: • advantages permitted under public employment law or contractually approved by a third party; and • negligible advantages that are common social practice. Advantages that are negligible, but clearly an attempt at bribery, are not covered by Article 322 decies, para - graph 1 (b) of the SCC. The threshold for negligible advantages that are common social practice lies in their capacity to influence the person accepting the advantage. For federal personnel, the limit for negligi - ble advantages is regulated by law at CHF200. In addition, pursuant to Article 52 of the SCC, the competent authority shall refrain from prosecuting the offender, bringing them to court or punishing them if the level of culpability and consequences of the offence are negligible. Article 322 decies, paragraph 2 of the SCC provides that private individuals who fulfil official duties are subject to the same provisions as public officials.
public official for passive bribery. 2.3 Financial Record-Keeping
Under Swiss criminal law, it is a punishable offence if a debtor fails to comply with a statutory obligation to keep and preserve business accounts or draw up a balance sheet – with the result that their financial
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