SWITZERLAND Law and Practice Contributed by: Bruno Ledrappier and Camille Vuillemin-Loup, Charles Russell Speechlys Switzerland
The modernisation of the Federal Act on Administra - tive Criminal Law is another ongoing reform effort. A Working Group appointed by the Federal Office of Justice has been reviewing the existing framework with a view to adapting it to contemporary enforce - ment needs, including the interaction between admin - istrative and criminal proceedings. Recent case law from the Swiss Federal Supreme Court (FSC) has had a substantial impact on finan - cial crime practice. In its decision 7B_45/2022 of 21 July 2025, the FSC addressed the admissibility of evidence collected by FINMA in subsequent criminal proceedings. The court held that evidence obtained by FINMA from supervised entities without inform - ing them of their right not to self-incriminate (nemo tenetur) is inadmissible in criminal proceedings. This ruling represents a significant departure from earlier case law, which had generally permitted the use of evidence gathered in administrative proceedings, pro - vided no improper compulsion had been applied. The FSC expressly stated that the nemo tenetur principle applies not only to individuals but also to legal entities facing the risk of criminal prosecution. This decision is expected to have far-reaching implications. FINMA will likely be required to proactively inform persons and entities of their right not to incriminate themselves when seeking co-operation, particularly where there is a risk of criminal exposure. Pending criminal pro - ceedings that rely on evidence collected by FINMA in breach of the nemo tenetur principle may also be significantly affected. In a landmark ruling dated January 2025, the Federal Criminal Court convicted Trafigura of failing to pre - vent bribery of a foreign public official under Article 102 SCC – the first time a multinational was tried and convicted at trial (as opposed to summary penalty order) in Switzerland for foreign bribery. The court imposed a CHF3 million fine and ordered USD145.6 million in compensation, citing “organisational fail -
ures” that allowed corrupt payments to an Angolan official between 2009 and 2011. Former COO was sentenced to 32 months’ imprisonment, of which 12 must be served – a rare instance of a senior trading executive being personally convicted. An appeal is pending. In the area of attorney-client privilege, the FSC issued two important decisions on 6 August 2024. In FSC 150 IV 470, the court affirmed that attorney-client privilege generally covers internal investigation reports prepared by lawyers, including the process of review, analysis and selection of documents, which qualifies as privileged work product. The court confirmed that fact-finding linked to ongoing or potential litigation is a typical activity of a lawyer and thus warrants privi - lege protection. However, the court also clarified that privilege does not extend to compliance-related tasks that are part of a supervised entity’s core regulatory duties, such as AML compliance work. In the companion case 7B_874/2023, the FSC ruled that attorney-client privilege does not extend to third parties to whom privileged information has been vol - untarily disclosed. Where a bank voluntarily provided its internal investigation report to FINMA, the privilege was not maintained vis-à-vis the prosecution authori - ties who obtained the information from FINMA. The court reasoned that the voluntary disclosure caused the information to leave the protected attorney-client relationship. These decisions highlight the tension between the duty of supervised entities to cooperate with FINMA and the preservation of fundamental procedural rights in criminal proceedings. The case law underscores the importance of carefully managing the documenta - tion and disclosure of internal investigation findings, particularly where parallel criminal proceedings are anticipated or ongoing.
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