LIECHTENSTEIN Law and Practice Contributed by: Simon Ott, Andreas Vogel, Husmira Halis and Felix Bayer, Schurti Partners Attorneys at Law Ltd
scope of the legal entity’s purpose ( Anlasstat ). Conse - quently, a functional connection between the offence and the legal entity’s activity (ie, its entire area of activ - ity, including all entity-related activities) is required. Therefore, no corporate criminal liability can be estab - lished for offences that have been committed in the exclusive interest of a managing person or a subordi - nate or against the legal entity itself. Further, it is required that both the objective and sub - jective elements of the offence committed by the indi - vidual be fulfilled. According to Liechtenstein criminal law, both the legal entity and the individual can be sentenced for the same offence. Further, it is common practice in Liechtenstein that, in the case of a respective sus - picion, both the legal entity and the individual con - cerned will be prosecuted (despite the fact that it is not mandatory to prosecute the individual in order to find the legal entity guilty). In the case of a conviction, a monetary penalty is imposed on the legal entity. The monetary penalty is assessed in daily rates with a minimum number of at least one daily rate and a maximum number of daily rates depending on the sentence of the offence for which the legal entity is convicted – for example: • up to 130 daily rates for an offence with a sentence of imprisonment of up to ten years; • up to 100 daily rates for an offence with a sentence of imprisonment of up to five years; or • up to 85 daily rates for an offence with a sentence of imprisonment of up to three years. The number of daily rates is based on the severity and consequences of the offence committed by an execu - tive or the seriousness of the organisational deficien - cy, respectively. In addition, the conduct of the legal entity after the offence must be taken into account, in particular whether it has compensated for the conse - quences caused by the offence and supported the law enforcement authorities in the investigations. The assessment of the amount of one daily rate primar - ily depends on the income situation of the legal entity but must also take into consideration its economic
capacity. The amount of one daily rate assessed must correspond to 1/360th of the annual corporate earn - ings of the legal entity, but must be at least CHF100 and at most CHF15,000. If a legal entity is found guilty and sentenced to a monetary penalty, the latter can be conditionally sus - pended for a probation period of at least one and at most three years. A conditional suspension is, inter alia, applied if it is deemed sufficient to prevent the committing of further offences for which the legal entity can be held criminally liable. In the context of a merger or an acquisition, the suc - cessor entity may be held liable for offences com - mitted by the target entity that occurred prior to the merger or acquisition. The same holds true for mon - etary penalties that were imposed prior to the merger or acquisition. In terms of group company liability, the Liechtenstein Criminal Code does not stipulate any provisions that a company can be held criminally liable for its sub - sidiaries. 1.6 Sentencing and Penalties As outlined in 2.7 Deferred Prosecution and 4.3 Plea Agreements, Co-Operation, Self-Disclosure and Leniency , deferred prosecution agreements, non- prosecution agreements, and plea agreements are not available under Liechtenstein criminal law. The assessment of penalties is based on the culpabil - ity of the offender. When assessing the penalty, the reasons for mitigation and the reasons for aggrava - tion of the penalty must be considered. In addition, the effects of a penalty on the offender’s future life in society, or its further existence in the case of a legal entity, must be taken into consideration. If a natural person is punished with a monetary penalty, the latter will be assessed in daily rates. The amount of one daily rate is to be determined according to the personal circumstances and the economic capacity of the offender at the point in time when the judgment of first instance is rendered. According to Liechtenstein criminal law, the amount of one daily rate is at least CHF15 and at most CHF5,000. If the monetary pen -
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