SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
With regard to the constituent elements com - mon to all types of bribery, reference should be made to the preliminary remarks. The active and passive bribery of foreign pub - lic officials occurs when an undue advantage is offered, given or promised to ‒ or respectively demanded, accepted or (the promise of which is) secured by – the following where they are acting for a foreign state or international organisation: • members of a judicial or other authority; • public officials; • officially appointed experts, translators or interpreters; • arbitrators; or Not only has the active and passive bribery of Swiss (Articles 322ter and 322quater of the SCC) and foreign public officials (Article 322septies of the SCC) been forbidden since 2016, but the active and passive bribery of private individuals is also forbidden (as per Articles 322octies and 322novies of the SCC). Pursuant to Article 322octies, paragraph 1 of the SCC, any person is criminally liable if said person offers, promises or gives an employee, partner, agent or any other auxiliary of a third party in the private sector an undue advantage in order that they carry out (or fail to carry out) an act in connection with their official activities that is contrary to their duties or dependent on their discretion. • members of the armed forces. Bribery of Private Individuals As the constituent elements correspond with bribery of public officials, reference should be made to the preliminary remarks.
It is nevertheless noteworthy that the require - ments for the active and passive bribery of pri - vate individuals (as defined in Articles 322octies and 322novies of the SCC) also apply to the bribery of foreign private individuals. Further - more, in minor cases, active and passive bribery of private individuals is only prosecuted upon complaint. Cases could be considered minor if: • the sum in tort is not extensive; • the security and health of third parties are not affected by the offence; • there is no multiple or repeated commission of the offence by a member of a group; or • no document fraud has been committed in connection with the bribery. General Provisions The general provisions contained in Article 322decies of the SCC are applicable to every form of bribery in Swiss law. According to Article 322decies, paragraph 1 of the SCC, the follow - ing are not undue advantages: • advantages permitted under public employ - ment law or contractually approved by a third party; and • negligible advantages that are common social practice. Advantages that are negligible, but clearly an attempt at bribery, are not covered by Article 322decies, paragraph 1(b) of the SCC. The threshold for negligible advantages that are common social practice lies in their capacity to influence the person accepting the advantage. For federal personnel, the limit for negligible advantages is regulated by law at CHF200. In addition, pursuant to Article 52 of the SCC, the competent authority shall refrain from pros - ecuting the offender, bringing them to court, or
433 CHAMBERS.COM
Powered by FlippingBook