SWITZERLAND Law and Practice Contributed by: Philippe M. Reich, Kaspar Projer, Samantha Salsench and Anna Zellweger, Baker McKenzie Switzerland AG
2.2 Enforcement 2.2.1 Enforcement Responsibilities
Compatibility with Switzerland’s Permanent Neutrality In 1981, in the message regarding Switzerland’s accession to the UN, the Federal Council confirmed the compatibility of the permanent neutrality of Swit - zerland with the sanctions system provided in the UN Charter. The Federal Council’s “White Paper on Neutrality”, annexed to the “Report on Swiss Foreign Policy for the Nineties of 29 November 1993”, p. 19 et seq., stat - ed that neutrality is compatible with the UN sanctions system (not only economic sanctions but also military sanctions), provided that the sanctions are imposed by the UN Security Council under Chapter VII of the UN Charter and are supported by the majority of the international community. The “White Paper on Neutrality” also addressed the willingness of Switzerland to participate in EU eco - nomic sanctions, “[t]o the extent that economic sanc - tions are used to maintain or re-establish peace, to prevent or contain warfare or even to punish states that have violated international law” (p. 25). This is the very basis for aligning also with the EU sanctions against Russia and other states violating international law. The EmbA forms the legal basis for the adoption and implementation of sanctions in Switzerland. It is a so- called framework law, which regulates matters of gen - eral application (purpose, responsibilities, obligation to provide information, monitoring, data protection, administrative and legal assistance, legal protection and criminal provisions). As mentioned in 1.4.1 Types of Sanctions , the Federal Council alone has the authority to enact and amend coercive measures by means of sanctions ordinances (Article 2 paragraph 1 EmbA). SECO is the competent authority to implement and enforce Swiss sanctions (see 2.2.1 Enforcement Responsibilities ). 2. Overview of Regulatory Field 2.1 Primary Regulators
SECO is the primary authority responsible for the implementation and enforcement of sanctions accord - ing to Article 14 EmbA. Additionally, other federal agencies may handle specific aspects of sanctions. For instance, travel bans fall under the authority of the State Secretariat for Migration. 2.2.2 Breaching Sanctions In Switzerland, the violation of sanctions is a criminal offence (whereby the EmbA further differs between felonies and offences and misdemeanours). Article 9 EmbA deals with felonies and offences. According to this provision, the intentional violation by natural persons of most provisions of sanctions ordinances, namely prohibitions, may be punished with imprison - ment of up to one year or a monetary penalty of up to 180 daily penalty units to a maximum of CHF3,000 each (see Article 9 paragraph 1 EmbA). For severe violations of such provisions, the penalty is impris - onment of up to five years, which may also be com - bined with a monetary penalty of up to CHF1 million (corresponding to 333 daily penalty units to a maxi - mum of CHF3,000 each [rounded]). If the violation is caused by negligence, the punishment is a fine of up to CHF100,000 (see Article 9 paragraph 3 EmbA). According to Article 10 EmbA, which deals with mis - demeanours, the intentional violation of other provi - sions of the sanctions ordinances, for example certain reporting duties, may be punished with a fine of up to CHF100,000 (see Article 10 paragraph 1 EmbA). A violation by negligence may result in a fine of up to CHF40,000 (see Article 10 paragraph 3 EmbA). Most importantly, due to the sole applicability of administrative criminal law according to Article 12 paragraph 1 and Article 14 paragraph 1 EmbA, there is no original or subsidiary criminal liability of companies outside of Article 102 paragraph 1 of the Swiss Crimi - nal Code, with the following exception: According to Article 7 paragraph 1 of the Federal Act on Adminis - trative Criminal Law, a legal entity, instead of the indi - vidual being responsible for the sanctions violation, may be fined up to CHF5,000 in case (i) an offence is committed by an enterprise; (ii) the fine in question does not exceed CHF5,000; and (iii) the investigation
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