SWITZERLAND Law and Practice Contributed by: François Micheli, Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
position is not ascertainable or not fully ascertaina - ble ‒ when bankruptcy proceedings are commenced against them (Article 166 of the SCC). Moreover, as per Article 325 of the SCC, a person is criminally liable if they wilfully (or through negligence) fail to comply with the statutory duty to: • keep proper accounts; or • preserve accounts, business correspondence and business telegrams. Financial record-keeping requirements have proven to be an effective tool for the prosecuting authori - ties when investigating well-established international companies that are suspected of bribery: as per Swiss case law, balance sheets, profit/loss (P/L) statements and documents on the basis of which financial state - ments are established are deemed forgeries if their content is not sincere. This is relevant, for instance, in case of consultancy agreements where the considera - tion provided by the consultant is only described in vague terms – such as established market studies, the reporting or competition environment, etc – and does not correspond to the activity the consultant actually carries out, as well as in the case of so-called off- balance-sheet payments. Forgery of documents is covered by Article 251 of the SCC, which punishes the production and use of a false or falsified document. If the offender is a public official or a person acting in an official capacity, Article 317 of the SCC (regarding forgery of a document by a public official) is applicable. 2.4 Public Officials Under Swiss law, there are several provisions pertain - ing to the criminally relevant behaviour of public offi - cials. Pursuant to Article 313 of the SCC, any public official who – for unlawful gain – levies taxes, fees or other charges that are not due (or that exceed the statutory rates) is criminally liable. Likewise, any mem - ber of an authority or public official who damages the public interests that they have a duty to safeguard in the course of a legal transaction ‒ and with a view to obtaining an unlawful advantage for themselves or another ‒ is liable to prosecution for misconduct in public office (Article 314 of the SCC). Finally, any member of an authority or a public official who abuses
their official powers to secure an unlawful advantage for themselves or another – or to cause prejudice to another – is liable to prosecution for abuse of public office (Article 312 of the SCC). 2.5 Intermediaries As previously mentioned in 2.1 Bribery , Articles 322 ter to 322 novies of the SCC explicitly provide that the undue advantage does not need to be offered, promised or given to the public official – it can also be offered, promised or given to a third party. Apart from that, the general provisions concerning complic - ity, incitement and assistance are applicable, as the case may be. 2.6 Lobbyists Apart from the bribery offences mentioned in 2.1 Brib- ery , there is no specific legislation in Switzerland to regulate lobbing activities. However, there are a few regulations that serve the purpose of transparency: • during the legislative process, affected and inter - ested groups have the opportunity to be heard and to express their point of view; and • members of Parliament are obliged to disclose their private interests in accordance with Article 11, paragraph 1 of the Parliament Act. Swiss criminal law distinguishes between the limita - tion of prosecution rights and the limitation period for the execution of a sentence. Whereas the former has the effect of hindering the authorities in prosecuting, the latter prevents a sentence from being executed. Limitation of prosecution rights depends on the maxi - mum sentence provided for in the offence. According to Article 97, paragraph 1 (b) of the SCC, the right to prosecute is subject to a time limit of 15 years if the offence carries a custodial sentence of more than three years. This is the case for active and passive bribery of a Swiss or foreign public official (Articles 322 ter, 322 quater and 322 septies of the SCC). 3. Scope of Application 3.1 Limitation Period
246 CHAMBERS.COM
Powered by FlippingBook