SWITZERLAND Law and Practice Contributed by: Bruno Ledrappier and Camille Vuillemin-Loup, Charles Russell Speechlys Switzerland
federation has exclusive jurisdiction over certain finan - cial crime offences, while residual jurisdiction lies with the cantons. 4.5 Trial by Jury Switzerland abolished jury trials with the entry into force of the unified Swiss Criminal Procedure Code (CrimPC) in January 2011, so there is no election as to mode of trial. Criminal cases, including financial crime matters, are decided by professional judges sitting either as a sin - gle judge or as a panel, depending on the severity of the offence and the applicable procedural rules. At the Federal Criminal Court, cases are typically heard by a three-judge panel of the Criminal Cham - ber. At the cantonal level, serious offences are likewise tried before a panel of judges, while minor offences may be adjudicated by a single judge. There are no proposals to reintroduce jury trials in financial crime cases, nor are there ongoing discus - sions about alternative forms of lay participation. The professional judge model is largely considered well suited to the complexity of financial crime cases, which often require detailed analysis of financial docu - mentation and sophisticated legal reasoning. 5. Corporate Liability, Compliance and Defences 5.1 Corporate and Individual Liability Under Swiss law, companies and individuals can be prosecuted concurrently, but the framework depends on which type of corporate liability applies. Article 102 SCC establishes two forms of corporate criminal liability. Under the subsidiary liability regime (Article 102 (1), a company can only be held liable if no indi - vidual perpetrator can be identified due to the com - pany’s deficient internal organisation. This effectively precludes concurrent prosecution of the company and the individual for the same offence. However, under the primary liability regime (Article 102 (2), which applies to a specific catalogue of financial offences – including corruption, bribery, money laundering and financing of terrorism – a company can be prosecuted
irrespective of whether an individual is also identified and prosecuted. In these cases, concurrent prosecu - tion of both the company and responsible individu - als is possible, meaning that a company may face criminal proceedings alongside its directors, officers or employees who are alleged to have committed the underlying offence. Regarding corporate group liability, Swiss criminal law does not automatically extend liability from a subsidiary to a parent company or vice versa. Each legal entity is treated independently. In practice, the OAG has faced criticism for failing to pursue parent company liability even where subsidiaries were con - victed, as seen in cases where the OAG declined to prosecute parent entities on the basis that operations were “completely independent and autonomous”. On successor liability, however, the OAG has taken a pro - active approach, enforcing Article 102 SCC against successor companies that assumed the operations of entities implicated in criminal conduct. Swiss law oth - erwise lacks a comprehensive statutory framework for attributing criminal liability across corporate groups or Swiss law does not impose a general statutory obli - gation on all companies to maintain financial crime compliance programmes. However, companies oper - ating in regulated sectors – particularly financial insti - tutions – are subject to specific compliance require - ments under the AMLA, which mandates customer due diligence, suspicious transaction reporting and related controls. Additionally, Article 716a CO requires boards of directors to ensure overall management, organisation and compliance of the company, estab - lishing a broad corporate governance duty that implic - itly encompasses compliance systems. FINMA further imposes regulatory expectations on supervised enti - ties to maintain robust risk and compliance manage - ment frameworks. Regarding the role of compliance programmes as a defence, under Article 102 (2) SCC – which governs primary corporate liability for offences such as brib - ery and money laundering – a company is criminally liable only if it failed to take “all reasonable organi - sational measures” to prevent the offence. An effec - through corporate restructuring. 5.2 Compliance Programmes
205 CHAMBERS.COM
Powered by FlippingBook