SWITZERLAND Law and Practice Contributed by: François Micheli, Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
In the case of corporate liability (Article 102, para - graph 2 of the SCC), the bribery offence itself need not have been committed by a Swiss corporation in Switzerland. It is sufficient that a lack of organisation occurred (at least partially) in Switzerland, which may be the case if a subsidiary, affiliate or branch located in Switzerland is responsible for the compliance of the group of companies. FINMA is authorised to issue administrative orders relating to corruption against persons and entities that are required to be licensed, recognised or registered by FINMA. 7.4 Discretion for Mitigation and Aggravation The enforcing bodies act ex officio and are thus obliged to investigate and sanction bribery without exception. Swiss law does not provide for plea agree - ments, DPAs and non-prosecution agreements exact - ly equivalent to such instruments in other jurisdictions. However, Swiss law provides for the following mecha - nisms to achieve similar results. According to Article 53 of the SCC, the competent authority shall refrain from prosecuting or punishing an individual or corporation if: • the offender “admits the facts” and “has made reparation for the loss, damage or injury or made every reasonable effort to right the wrong”; • the interests of the general public and of the per - son harmed are negligible; and • the requirements for a suspended sentence of not more than one year are fulfilled. In such cases, the reparation requested can be dis - cussed ex ante between the prosecution and the defence, and could, for example, consist of a payment to a charitable organisation. • Article 352 et seq of the SCP provides that, if the offender admits the facts brought against them or if the facts are “otherwise sufficiently established”, the prosecution authorities may issue a summary penalty order. This can be appealed to the court and is therefore, so to speak, a plea agreement offer by the prosecution authorities. The offer may
be the result of discussions between the prosecu - tor and the defence. • Article 358 et seq of the SCP provides that an offender who admits the relevant facts brought against him or her and accepts civil claims raised by damaged parties may apply for so-called accelerated proceedings, which may involve “sen - tence bargaining” between the prosecutor and the defence. The sentence is reduced, and a long trial avoided, in return for the offender admitting the relevant facts. • Article 48 (d) of the SCC provides for mitigation of a sanction if the offender has shown sincere remorse for their actions and, in particular, has made reparation for the damage (insofar as this may be expected of them). This provision can be applied, for example, in the case of self-reporting and/or improvement of the company’s compliance and governance practice. As regards FINMA investigations, FINMA has wide discretion to mitigate sanctions in light of the financial intermediary’s co-operation during the investigation (including efforts for reparation). 7.5 Recent Landmark Investigations or Decisions The following selection of landmark investigations and decisions involves bribery or corruption in Switzer - land. Trafigura Bribery Case (2025) In a historic decision, the Swiss Federal Criminal Court convicted the commodities firm Trafigura and its for - mer chief operating officer (COO) for bribing an Ango - lan public official between 2009 and 2011. The court found violations of Article 322 of the SCC (bribery of foreign public officials) and held the company liable for inadequate internal controls. Sentences included (partially suspended) prison terms for individuals (eg, the ex-executive was sentenced to 32 months, of which 12 months must be served) and a fine of CHF3 million for the company, plus a large compensation claim (approximately USD145 million), to be reserved. This is notable as one of the first times a large trading company has been held criminally liable at the federal level in Switzerland for foreign bribery.
252 CHAMBERS.COM
Powered by FlippingBook