SWITZERLAND Law and Practice Contributed by: François Micheli, Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
4. Defences and Exceptions 4.1 Defences
followed by co-operation during proceedings may be taken into account by the criminal authorities when determining a sentence (Article 102, paragraphs 3, 47 and 48 of the SCC). According to Article 53 of the SCC, if an offender has made reparation for the loss, damage or injury (or made every reasonable effort to right the wrong that they have caused), the competent authority shall refrain from prosecuting them, bringing them to court or punishing them if: • the requirements for a suspended sentence are fulfilled; and • the interests of the general public and of the per - sons harmed in the case are negligible. Alternatively, if the aforementioned requirements are not met, but the facts are acknowledged in a sponta - neous report or during the subsequent investigation, the offender may apply for a so-called accelerated proceeding and thus avoid a long trial. Typically, the sanctions imposed in such accelerated proceedings are not as severe. Switzerland does not have the legal basis, similar to a deferred prosecution agree - ment (DPA), to defer criminal prosecution against companies and to subsequently discontinue criminal investigations if the company has successfully passed the probation period. The proposal of the Office of the Attorney General of Switzerland (OAG) was not adopted in the Federal Council’s draft bill (2022) for a revision of the Swiss Criminal Procedure Code (SCP). The maximum penalty for an individual convicted of the active or passive bribing of (either Swiss or for - eign) public officials is five years’ imprisonment or a monetary penalty. The maximum penalty for grant - ing or accepting an undue advantage is three years’ imprisonment or a monetary penalty. Bribery in the private sector carries a sentence of up to three years of imprisonment or a monetary penalty. The maximum monetary penalty is CHF540,000. Depending on the circumstances of the case, penalties may also include a ban on exercising professional activities or a revoca - 5. Penalties for Violations 5.1 Penalties on Conviction
Generally speaking, a person or corporation accused of bribery can raise defences that pertain to the objec - tive and subjective requirements of the relevant pro - vision (see 2. Bribery and Corruption Elements ). In particular, it can be argued that: • a minor gift does not qualify as an undue advan - tage in the sense of Article 322 ter of the SCC; • whoever was offered or demanded the undue advantage does not have the status of a foreign public official (as per Article 322 septies of the SCC); • the undue advantage was not offered “in order to cause” the public official to act contrary to their duties (lack of “equivalence link”); • the public official who was offered or demanded the undue advantage did not have any influence on the carrying out of the relevant official act; • the offender did not act with intent – or at least not with conditional intent (dolus eventualis) – in rela - tion to all objective requirements of the offence; • in the case of corporate liability, the corpora - tion took all reasonable organisational measures required to prevent the offence; or • in the case of insufficient organisational measures, the lack of such measures did not lead to the com - mission of the offence. 4.2 Exceptions There are no exceptions to the defences mentioned under 4.1 Defence s. 4.3 De Minimis Exceptions As outlined in 2. Bribery and Corruption Elements , Article 322 decies, paragraphs 1 (b) and 52 of the SCC set out certain de minimis exceptions. 4.4 Exempt Sectors/Industries There are no sectors or industries that are exempt from the offences discussed in this chapter. 4.5 Safe Harbour or Amnesty Programme Swiss law does not contain specific provisions that reward spontaneous reports of irregularities by natu - ral persons or corporations. However, self-reporting
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