SWITZERLAND Law and Practice Contributed by: François Micheli, Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
tion of a residence permit for foreigners. A legal entity may be sanctioned with a fine of up to CHF5 million. As a further significant sanction, the court may order the forfeiture of illegal profits obtained through corrupt acts or assets intended to commission or reward the offender (Article 70 of the SCC). If the assets sub - ject to forfeiture are no longer available, the court may uphold a claim for compensation by the state in respect of a sum of equivalent value (Article 71 of the SCC). There is no cap on the amount of money for such forfeiture or compensation claims. Bribery will often include concomitant violations of accounting or book-keeping obligations, or falsifica - tion of accounting documents, and sometimes tax offences. Such violations may lead to the same or similar criminal sanctions as bribery (ie, imprison - ment or monetary sanctions), as well as administrative sanctions in certain regulated sectors. Lastly, Swiss criminal procedure law provides that any individual who has suffered harm from bribery or corruption may file a civil claim as a private claimant in the criminal proceedings. Although technically not a penalty, two issues per - taining to criminal record legislation deserve to be mentioned. Firstly, any conviction for a crime or misdemeanour is noted in the concerned person’s criminal record (Article 18, paragraph 1 No 1 of the Federal Statute on Criminal Record; and Article 20, paragraph 1 of the Decree thereto). The entry in the criminal record includes confiscation decisions (Article 20, paragraph 1 (f) of the Federal Statute on Criminal Record; and Article 20, paragraph 1 of the Decree thereto). Exemption from entries in the criminal record pertain to confiscations of less than CHF100,000, as well as cases where the matter has been shelved on the basis of the aforementioned Article 52 of the SCC (see 4.3 De Minimis Exceptions ). This exemption does not include cases where the prosecution has been abandoned in accordance with Article 53 of the SCC (see 4.5 Safe Harbour or Amnesty Programme ). Secondly, in accordance with the European Conven - tion on Mutual Assistance in Criminal Matters (ECMA), as well as other international treaties, entries in the criminal record regarding foreigners are periodically communicated to the concerned foreign state (Article
22 of the ECMA). Furthermore, Article 13, paragraph 1 of the ECMA provides that excerpts of the criminal record are transmitted to foreign states who request it in relation to one of their nationals. 5.2 Guidelines Applicable to the Assessment of Penalties Swiss criminal law does not provide general guide - lines on the assessment of appropriate penalties. Rather, based on the SCC, the authorities have broad discretion when determining the appropriate sanction. Factors to be considered include the degree of fault, previous convictions and personal circumstances of the offender, and the impact of the sanction on their life (Article 47 of the SCC). To determine monetary penalties, Swiss courts consider personal and finan - cial circumstances for individuals (Article 34 of the SCC) and the offence’s severity, organisational fail - ings, damage caused and corporate financial capacity for companies (Article 102, paragraph 3 of the SCC). Repeated offences will lead to an increase of the sen - tence by up to 50% based on the most serious offence (Article 49, Paragraph 1 of the SCC). Although Swiss law generally does not contain provisions to reward spontaneous reports of irregularities, self-reporting followed by co-operation during criminal proceed - ings may be taken into account when the sentence is determined (see 7.4 Discretion for Mitigation and Aggravation ). As a general rule, a person or entity is not obliged to report crimes in Switzerland. Only the criminal authorities, or other authorities pursuant to specific legal provisions, have an obligation to report crimes they have become aware of (Article 302 of the SCP). In these cases, the wilful failure to report may in itself constitute a crime (Article 305 of the SCP). Regarding corruption, concerned companies must prepare an annual report regarding non-financial mat - ters under the CO (see 1.4 Recent Key Amendments to National Legislation ). While criminal law provides for corresponding sanctions in the event of a breach of 6. Disclosure Processes 6.1 Disclosure Obligations
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