SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
made to the preliminary remarks. The following discussion is limited to elements that are specific to the bribery of Swiss public officials. In addition to public officials, the notion of a Swiss public official encompasses: • members of a judicial or other authority; • officially appointed experts, translators or interpreters; • arbitrators; or • members of the armed forces. Article 110, paragraph 3 of the SCC defines pub - lic officials as: • the officials and employees of a public admin - istrative authority or of an authority for the administration of justice; • persons who hold office temporarily at – or are employed temporarily by ‒ a public administrative authority or an authority for the administration of justice; or • persons who carry out official functions tem - porarily. In Swiss anti-corruption law, the position of a public official is assessed on the basis of the functional notion of a public official. Employ - ees of state-controlled companies are therefore included in such notion. In contrast to active bribery, passive bribery does not include members of the armed forces. The same is valid for the acceptance by Swiss public officials of an undue advantage. By mir - roring the offering, promising or giving, the Swiss public official demands, secures the promise of, or accepts the undue advantage. Per Articles 322quinquies and 322sexies of the SCC, the granting to – and acceptance by
– Swiss public officials of an undue advantage differs from active and passive bribery insofar as the undue advantage must be offered, promised or given in order that the Swiss public official carries out their official duties. Thus, in con - trast to active and passive bribery, the offering, promising or giving of an undue advantage is not linked to a concrete – or at least determinable – consideration of the Swiss public official. Never - theless, the undue advantage granted needs to be suitable (or enough) to influence the carrying out of the Swiss public official’s official duties. In contrast to active and passive bribery pursu - ant to Articles 322ter and 322quater of the SCC, the granting to ‒ and acceptance by ‒ Swiss pub - lic officials of an undue advantage refers only to the future exercise of the public official’s official duties. It is worth noting that the granting to and accept - ance by Swiss public officials of an undue advantage (as per Articles 322quinquies and 322sexies of the SCC) only applies to Swiss public officials and does not involve third parties. Facilitation payments – that is, smaller payments made to secure or expedite the performance of a routine or necessary action to which the payer has legal or other entitlement – could, in principle, fall within the scope of the offences of granting to and acceptance by Swiss public officials of an undue advantage. However, neg - ligible advantages that are common social prac - tice do not constitute undue advantages (Article 322decies, paragraph 1(b) of the SCC). Bribery of Foreign Public Officials The active and passive bribery of foreign public officials is a punishable offence pursuant to Arti - cle 322septies of the SCC.
432 CHAMBERS.COM
Powered by FlippingBook