SWITZERLAND Law and Practice Contributed by: François Micheli, Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
Article 97, paragraph 1 (c) of the SCC provides that the right to prosecute is subject to a time limit of ten years for the offences of: • granting to and acceptance by Swiss public offi - cials of an undue advantage (pursuant to Articles 322 quinquies and 322 sexies of the SCC); and • active and passive bribery of private individuals (pursuant to Articles 322 octies and 322 novies of the SCC). If a judgment is issued by a court of first instance before the limitation period expires, the time limit no longer applies (Article 97, paragraph 3 of the SCC). Depending on the sentence imposed, the right to exe - cute a sentence in connection with a bribery offence is subject to a limitation period of five, 15 or 20 years (Article 99, paragraph 1 of the SCC). 3.2 Geographical Reach of Applicable Legislation According to Article 3, paragraph 1 of the SCC, any person who commits an offence in Switzerland is sub - ject to the SCC. Article 8, paragraph 1 of the SCC clarifies what is meant by the place of commission by stating that an offence is considered to be com - mitted at: • the place where the person concerned commits it or unlawfully omits to act; and • the place where the offence has taken effect. If the offence is only partly committed in Switzerland, this is sufficient for the Swiss authorities to assert jurisdiction. With regard to bribery, Swiss jurisdiction can arguably be established if the bribe money has been transferred to or from a bank account in Switzer - land – regardless of whether the bribing or the bribed person has been to Switzerland. Notwithstanding the foregoing, Swiss legislation has extraterritorial reach under certain conditions. Pursu - ant to Article 6, paragraph 1 of the SCC, a person is subject to the SCC if they commit an offence abroad that Switzerland is obliged to prosecute in line with an international convention, provided that:
• the act is also liable to prosecution at the place of commission or no criminal law jurisdiction applies at the place of commission; and • the person concerned remains in Switzerland and is not extradited to the foreign country. Furthermore, Article 7, paragraph 1 of the SCC pro - vides that a person who commits an offence abroad – where the requirements of, in particular, Article 6 of the SCC are not fulfilled – is subject to the SCC if: • the offence is also liable to prosecution at the place of commission or the place of commission is not subject to criminal law jurisdiction; • the person concerned is in Switzerland or is extra - dited to Switzerland owing to the offence; and • under Swiss law, extradition is permitted for the offence, but the person concerned is not being extradited. If the person concerned is not Swiss, and if the offence was not committed against a Swiss person, Article 7, paragraph 1 of the SCC applies only if the request for extradition was refused for a reason unrelated to the nature of the offence (as per Article 7, paragraph 2 (a) of the SCC). 3.3 Corporate Liability As explained in 2.1 Bribery , under Swiss criminal law (Article 102, paragraph 2 of the SCC), a company will be penalised for an offence committed by an indi - vidual within the company ‒ irrespective of the criminal liability of any natural persons – if the company failed to take all the reasonable organisational measures necessary to prevent such an offence. In corporate groups, criminal liability can only be attributed to the group company in which the offence was committed. As such, the mother company is – in principle – not responsible for the offences commit - ted in the subsidiary company unless it had opera - tive control over the latter and is therefore deemed responsible for the lack of organisational measures in the subsidiary.
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