SWITZERLAND Law and Practice Contributed by: François Micheli, Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
Duvalier Case (2024) On 6 May 2024, the Federal Administrative Tribunal (FAT) rendered its first substantial judgment based on the Foreign Illicit Assets Act of 18 December 2015 (FIAA). The FIAA allows the confiscation of assets if the degree of corruption in the concerned state was noto - riously high when the concerned person held office, provided the concerned person’s wealth has outra - geously increased during this period. The proceeding conducted on the basis of the FIAA is administrative in nature, and it is not a criminal procedure. The matter pertained to the heirs of the former Minister of Finance of Haiti during the period 1982–85. The FAT ordered that some CHF4 million be definitively confiscated, and thereby set, on several issues, precedents. Maudet Case (2022) Pierre Maudet is a member of the cantonal govern - ment of Geneva. He had been invited by the Prince Heir of the Emirate of Abu Dhabi to attend the F1 Grand Prix in that Emirate in 2015. In its judgment of 31 October 2022, the Federal Supreme Court held that Pierre Maudet’s acceptance of this invitation (the total value of which was some CHF40,000) was to be qualified as the acceptance, by a public official, of an undue advantage. The Federal Supreme Court speci - fied that, in the context of the offer/acceptance of an undue advantage, it is not necessary to establish that the corruptor expected some form of consideration for the undue advantage s/he has given. 7.6 Level of Sanctions Imposed Based on the SCC, the authorities have broad dis - cretion when determining the appropriate sanction. Factors to be considered include the degree of fault, previous convictions, the offender’s personal circum - stances and the impact of the sanction on their life (Article 47 of the SCC). As for the sanctions imposed on legal entities, ref - erence should be made to the cases discussed in 7.5 Recent Landmark Investigations or Decisions . Although the maximum fine for companies is limited to CHF5 million, a significant sanction may come in the form of an order by the court to forfeit illegal profits obtained through corrupt acts or assets intended to induce or reward the offender (Article 70 of the SCC). If the assets subject to forfeiture are no longer avail -
the biggest cases of corruption within the Swiss fed - eral administration. The then-head of department at SECO had awarded overpriced IT contracts from 2004 to 2014 and received money, VIP football tickets and travel invitations in return. IT contracts worth almost CHF100 million were involved. In return, the former civil servant allegedly received benefits totalling more than CHF1.7 million. Three co-accused entrepreneurs, whose companies had profited from the contracts, received conditional prison sentences of up to 22 months and fines. Federal Supreme Court Decision Regarding Sealing and Attorney–Client Confidentiality (2024) To secure evidence, the public prosecutor’s office issued an order requiring the company involved to hand over an investigation report and other relevant documents connected to an internal investigation, which had been carried out by an attorney upon request of the company. The company complied with the order, but submitted the documents with a request for them to be sealed. A key point of contention was whether fact-finding was considered a typical legal activity that is covered by the attorney–client privilege. The Federal Supreme Court affirmed that the attor - ney–client privilege ensures the protection of client confidentiality and is not limited to representation in court, but also extends to all typical legal activities such as legal advice and, in the instant case, fact- finding, as well as the preparation of legal documents. Another point of contention was whether evidence that already existed before the legal advice was given lost its protection by being included in the attorney–client correspondence. The Federal Supreme Court ruled that as long as the information arose in the confiden - tial relationship between client and attorney, it remains protected by the attorney–client privilege, even if it had previously existed in other contexts. Finally, the question was also discussed as to whether the dis - closure of information to a third party (in this case, FINMA) affects the confidential nature of the attor - ney–client correspondence. The Federal Supreme Court clarified that information voluntarily disclosed to a third party is not automatically considered to be generally known and that the client’s intention of con - fidentiality remains.
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