SWITZERLAND Law and Practice Contributed by: Bruno Ledrappier and Camille Vuillemin-Loup, Charles Russell Speechlys Switzerland
imprisonment. False accounting is addressed through forgery of documents (Article 251 SCC). Swiss law does not provide for a specific corporate offence of failure to prevent tax evasion, but companies may incur liability under Article 102 SCC where tax fraud cannot be attributed to a specific individual due to organisational deficiencies. 3.6 Cartels and Anti-Competitive Offences Swiss competition law is governed by the Federal Act on Cartels and other Restraints of Competition, CartA. Illegal cartels (price-fixing, market allocation, bid-rigging) are subject to administrative sanctions by the Swiss Competition Commission (COMCO), with fines up to 10% of Swiss turnover in the preceding three years (Article 49a CartA). Criminal sanctions are limited. Individuals may be prosecuted for violating COMCO orders or cartel behaviour in public procure - ment (Article 54 CartA). Bid-rigging may also consti - tute fraud under Article 146 SCC. Switzerland oper - ates a leniency programmed granting immunity to the first participant reporting a cartel infringement. 3.7 Counterfeiting Counterfeiting of money is criminalised under Articles 240-249 SCC, covering the production, importation and circulation of counterfeit banknotes and coins (up to five years’ imprisonment). Intellectual prop - erty infringement is addressed under the Trademark Protection Act (TmPA) and the Copyright Act (CopA). Trade mark counterfeiting carries up to one year’s imprisonment, increased to five years in commercial cases (Article 61 TmPA). Customs authorities may seize counterfeit goods at the border. 3.8 Greenwashing and Environmental Pollution Violations Environmental pollution is primarily addressed through the Environmental Protection Act (EPA) with criminal sanctions of up to three years imprisonment for seri - ous offences (Article 60 EPA). Greenwashing is not a standalone criminal offence. However, misleading environmental claims may be prosecuted under the UCA. Listed companies are subject to non-financial reporting obligations under Article 964a et seq CO, including environmental disclosures. FINMA has signalled increased scrutiny of sustainability-related claims in the financial sector. Enforcement is gener -
ally through administrative proceedings, with criminal prosecution reserved for serious or wilful violations. Civil claims may be brought under the EPA and gen - eral tort law. 4. Prosecution and Trial Process 4.1 Initiating a Prosecution In Switzerland, financial crime prosecutions are typi - cally initiated by the public prosecutor opening an investigation upon learning of a suspected offence, whether through police reports, reports from the MROS, complaints from regulatory bodies such as FINMA or private complaints. Proceedings begin with investigatory activity by police or the formal opening of an investigation by the prosecutor (Arti - cle 300 CrimPC); for offences prosecuted only upon complaint, a complaint must first be filed (Article 303 CrimPC). Prosecutions need not follow arrest – cas - es are commonly initiated through summary penalty orders issued by post, and accused persons may be summoned to proceedings without prior arrest. In practice, many financial crime suspects are first heard as witnesses or persons providing information, and formal charges may follow later once the investigation gives rise to sufficient suspicion. The decision to prosecute rests with the public pros - ecutor – either a cantonal Public Prosecutor’s Office or the OAG for matters under federal jurisdiction such as money laundering, corruption of foreign public offi - cials, and certain organised crime-related offences. Administrative criminal proceedings in areas such as tax offences or financial market violations may also be initiated by the relevant department such as the Federal Department of Finance (FDF). Prosecutors are obliged to prosecute offences ex offi - cio when there is sufficient suspicion; Swiss law fol - lows the principle of mandatory prosecution, with little exception. Both companies (under Article 102 SCC) and individuals may be prosecuted, and in cases of primary corporate liability, they can be prosecuted in parallel. The governing legal framework includes the Swiss Criminal Code (SCC), the Swiss Code of Criminal
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