SWITZERLAND Trends and Developments Contributed by: Anna Neukom Chaney, Julien Boulter, Rolf Schuler and Marco S. Meier, Binder Legal
frivolous and/or in violation of the employee’s per - sonality rights. A so-called reasonable suspicion is sufficient basis for an employer to terminate an employee, even if the suspicion is ultimately proven to be unfounded. This sets the bar for conducting internal investigations. To sum up, employers do not have to adhere to crimi - nal procedural guarantees when conducting an HR internal investigation. However, they must still balance the interests and rights of the employees involved and refrain from taking disproportionate and/or one-sided measures which insinuate the truthfulness of the alle - gations and, thereby, damage the reputation of the accused (often beyond repair). A company should, for example, not put only one of the employees con - cerned on garden leave during an ongoing investiga - tion unless this is required to prevent (further) harm or allow for an unhindered investigation. Also, given that internal investigations have an impact on the person - ality rights of the employees concerned, especially the accused, employers have an obligation to conduct internal investigations with impartiality, discretion and freedom from conflicts of interest and to make sure that any suspicions building the grounds for a termina - tion are reasonably investigated before serving notice. Admissibility of Self-Incriminating Information in Criminal Proceedings While it is now clear that employers do not have to adhere to criminal procedural guarantees, the admis - sibility of self-incriminating information provided by an employee during an internal investigation and the evidentiary value of such evidence in subsequent criminal proceedings remains a matter of controversy. In its 2020 landmark ruling, the FSC held that self- incriminating statements made during an employ - er’s internal investigation are admissible, even if the employer did not adhere to criminal procedural guar - antees (eg, inform the employee of their right against self-incrimination: nemo tenetur principle). The FSC argued that the employee was neither questioned by a government authority nor compelled to co-operate by the threat of criminal sanctions, and that the crimi - nal procedural guarantees therefore did not apply, even if the employee’s behaviour during the internal investigation may affect or impair the employment
relationship. Nonetheless, the FSC stated that the evidentiary value of such information depends on the circumstances. For example, if the employee was not informed of their right against self-incrimination and did not confirm the accuracy of the interview minutes (eg, by signing the minutes), the evidentiary value is very low. The FSC also stated that criminal authorities may not circumvent the criminal procedural guaran - tees by relying on information gathered outside formal criminal proceedings. The undermining of criminal procedural guarantees was the central issue of a new FSC decision dated 21 July 2025 concerning the admissibility of information gathered by the Swiss Financial Market Supervisory Authority (FINMA) during an administrative proceed - ing at the pre-enforcement stage. Prior to this deci - sion, evidence produced in administrative proceed - ings was generally considered admissible in criminal proceedings unless it had been obtained through improper compulsion (eg, threats of criminal sanc - tions). In the case at hand, FINMA requested that an individual completed questionnaires and explicitly reminded the individual of their duty to co-operate. FINMA also pointed to the criminal consequences of engaging in unauthorised financial intermediary activities and of providing inaccurate information, and threatened enforcement measures in the event of non-cooperation. However, the individual was not directly threatened with criminal sanctions for refus - ing to co-operate. Despite being aware that the state - ments obtained through the questionnaires could lead to, and be relevant in, subsequent criminal proceed - ings against the individual, FINMA did not inform the individual of their right against self-incrimination. The FSC ruled that the questionnaires were inadmissible in the subsequent criminal proceedings against the individual and that FINMA had violated the individual’s right to a fair trial. It reasoned that criminal authorities could otherwise undermine the criminal procedural guarantees by relying on self-incriminating information gathered outside the protective framework of formal criminal proceedings. This decision raises the question of whether the FSC will uphold its current practice of admitting self-incriminating statements made during an inter - nal investigation as evidence in subsequent criminal
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