SWITZERLAND Law and Practice Contributed by: Bruno Ledrappier and Camille Vuillemin-Loup, Charles Russell Speechlys Switzerland
tive compliance programme can therefore serve as a complete defence, eliminating corporate criminal liability entirely if the company demonstrates it had adequate organisational measures in place. Even where a programme falls short of fully exonerating the company, it can function as a mitigating factor in sentencing, as the level of organisational deficiency is a key criterion for determining the amount of any fine. Courts and prosecutors may also reduce sanctions where the company has taken post-offence remedial steps, including improving compliance procedures, enhancing employee training and increasing supervi - sion. Notably, however, compliance measures have no bearing on asset forfeiture – criminal authorities can seize proceeds of crime regardless of the company’s compliance efforts. 5.3 Defences and Exceptions Swiss financial crime offences generally require intent (dolus), meaning the prosecution must prove the defendant acted wilfully. Absence of requisite intent is therefore a fundamental defence; however, courts frequently infer intent from objective circumstances when direct evidence is unavailable. A defendant may also invoke error of law under Article 21 SCC, argu - ing they were unaware their conduct was unlawful, though this defence is rarely successful as courts set a very high threshold for what a person should reason - ably know. Error of fact (Article 13 SCC) is similarly available, allowing a defendant to assert ignorance of the factual circumstances constituting the offence. General justifications such as necessity and legiti - mate self-defence (Articles 17–18 SCC) exist but play a marginal role in financial crime cases. The statute of limitations also serves as a procedural defence that must always be considered. Regarding de minimis thresholds, Article 322decies of the SCC excludes liability for bribery where the advantage is of minor value and conforms to social customs, and Article 52 SCC allows courts to refrain from prosecution where the offender’s guilt and the consequences of the act are minor. Under the AMLA, professional dealers are subject to due diligence obli - gations only when they accept more than CHF100,000 in cash in a commercial transaction. As for safe har - bours, insider dealing provisions recognise exceptions for transactions executed in preparation for public
tenders and for price stabilisation or share repurchase programmes, reflecting the principle that “no one can be his own insider”. There are no sector-specific exemptions from bribery or corruption offences. Swiss law also contains no formal amnesty or safe harbour programme, although self-reporting and co-operation may be considered in mitigation at sentencing. 5.4 Whistle-Blower Protection Switzerland currently lacks comprehensive legisla - tion protecting whistle-blowers in the private sector. Multiple legislative proposals have been rejected by Parliament, most recently in 2024 when the National Council again voted against a new whistle-blower proposal. As a result, the measures whistle-blowers may take to report misconduct and the circumstanc - es under which they may report externally have been established primarily through case law. Under Articles 321a(1) and 321a(4) CO, employees owe a duty of loy - alty and confidentiality to their employer, meaning they must generally report misconduct internally first. Only if internal reporting is exhausted and a public interest concern exists may an employee escalate to authori - ties, and disclosure to the media is permitted only as a last resort. Whistle-blowers who breach these obli - gations risk criminal prosecution – for example, under Article 162 SCC (business secrecy) or Article 47 of the Banking Act (banking secrecy) – as well as dismissal. While termination solely for lodging a complaint may constitute unfair dismissal, the remedy is limited to compensation of up to six months’ salary, with no right of reinstatement. Switzerland offers no financial incentives for whistle- blowers comparable to programmes in the United States. However, anonymous reporting mechanisms do exist. In 2015, the Swiss Federal Audit Office launched an anonymous electronic reporting platform allowing the public to report suspicions of corruption, or fraud with guaranteed anonymity. Private entities are not legally required to establish whistle-blowing systems, though doing so is considered best practice and may be implicitly expected under corporate gov - ernance obligations. The OECD has repeatedly urged Switzerland to adopt stronger protections for private- sector whistle-blowers.
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