SWITZERLAND Trends and Developments Contributed by: Andrea Taormina and Lisa Maria Clavadetscher, taormina law AG
or extending existing ones beyond their legally pre - scribed scope. Accordingly, a criminal judge is forbid - den – at least to the detriment of the defendant – from filling genuine legislative gaps. These fundamental principles apply equally to corpo - rate criminal law, especially given that in Switzerland, it forms part of the core criminal law. The concept of an undertaking in the light of fundamental principles of criminal law The concept of an undertaking in light of the principle of culpability As previously indicated, the imposition of liability upon an undertaking requires that an organisational fault can be attributed to it. The accusation of organisational deficiencies in the context of corporate criminal liability is therefore intrinsically linked to a specific undertaking. Were such an accusation is to be transferred to another undertaking, the criminal attribution of fault would be detached from the particular organisational and responsibility structure of the offending undertaking and would result in an impermissible form of vicari - ous liability. Such a transfer of criminal liability would only be conceivable if the principle of culpability were abandoned, which is fundamentally inconsistent with the foundational understanding of criminal law. The concept of an undertaking in light of the principle of legal certainty and the prohibition of analogy In the context of corporate criminal liability, adher - ence to these fundamental principles of criminal law requires that interpretation remain within the bounda - ries established by the statutory wording. The decisive criterion is the semantic limit of the legal provision. Pursuant to Article 102 SCC, the “undertaking” is held accountable. Article 102, paragraph 4 SCC expressly and exhaustively defines what is to be understood by this concept of the undertaking. This exhaustive enumeration demonstrates that Arti - cle 102 SCC is anchored in a legal, private law con - cept of the undertaking. The prevailing doctrine like - wise proceeds – contrary to the case law mentioned above – from a legal concept of the undertaking within
the meaning of Article 102 SCC and not from a socio - logical or economic entity-based understanding. This assumption is also not contradicted by the legislative materials relating to Article 102 SCC. Consequently, Article 102 cannot be interpreted as encompassing any other undertaking that appears as the legal successor of the responsible undertaking. Were this not the case, the same reasoning would have to apply equally to individual persons and their legal successors. Support for this interpretation is also found in the Fed - eral Council Dispatch on the Unification of Criminal Procedure Law of 21 December 2005. It expressly states that no provision should be made govern - ing how to proceed where an undertaking involved in criminal proceedings merges with another entity. Rather, the legislature proceeded on the assumption that such proceedings would be governed by the gen - eral procedural rules applicable to individual persons as accused, or would be applied mutatis mutandis (BBl 1085, 1166 et seq.). The legislature therefore did not overlook the issue of criminal liability in the context of a merger, but instead deliberately refrained from establishing a regime that would depart from the principles applicable to indi - vidual persons. For the purpose of defining the concept of the under - taking, Article 102, paragraph 4 SCC constitutes the sole and decisive provision. It provides an exhaustive definition. Accordingly, it is impermissible for inter - pretation to extend beyond the semantic limits of the statutory wording. In our view, the principles of legal certainty and the prohibition of analogy require the application of a legal concept of the undertaking, as intended by the legislature. Interim conclusion With regard to the jurisprudence referred to above, it must be emphasised that the attribution of fault con - cerns the organisational failure of CS. At the relevant time, UBS exercised neither organisational nor fac - tual nor legal control over CS. Consequently, there is no culpable organisational deficiency attributable to UBS. To impose a penalty on UBS would amount to
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