SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
punishing them if the level of culpability and con - sequences of the offence are negligible. Article 322decies, paragraph 2 of the SCC pro - vides that private individuals who fulfil official duties are subject to the same provisions as public officials. Money Laundering Active and passive bribery of Swiss or foreign public officials (as per Articles 322ter, 322quater and 322septies of the SCC) qualify as felonies and are thus predicate offences to money laun - dering, according to Article 305bis of the SCC. In contrast, active and passive bribery of pri - vate individuals (as per Articles 322octies and 322novies of the SCC) are qualified as misde - meanours and are thus not predicate offences to money laundering. The same is true for the granting to and acceptance by Swiss public officials of an undue advantage (as per Articles 322quinquies and 322sexies of the SCC). 2.2 Influence-Peddling By trading in influence, a person misuses their influence over a decision-maker (typically a pub - lic official) for a third party in return for any undue advantage. Swiss law does not detail a specific offence with regard to trading in influence. However, if the intermediary is a public official, they could be held liable for passive bribery or accepting an undue advantage if they accept an undue advantage to influence another public official. The third party giving the undue advantage could be held liable for active bribery or grant - ing an undue advantage. However, the undue advantage must be linked to the official activity of the intermediary. It is important to note that, under Swiss law, the granting to and acceptance
by public officials of an undue advantage only applies to Swiss public officials. If the intermediary is a private individual, and the public official whose decision is to be influ - enced participates in the corruptive scheme and at least implicitly accepts the undue advantage from the intermediary, active and passive bribery could be fulfilled. Depending on the explicit or implicit agreement between the parties, the third party could be held liable for complicity or incite - ment to active bribery, the intermediary for active bribery (or complicity in active bribery) and the Under Swiss criminal law, it is a punishable offence if a debtor fails to comply with a statu - tory obligation to keep and preserve business accounts or draw up a balance sheet – with the result that their financial position is not ascer - tainable or not fully ascertainable ‒ when bank - ruptcy proceedings are commenced against them (Article 166 of the SCC). Moreover, as per Article 325 of the SCC, a person is criminally liable if they wilfully (or through negligence) fail to comply with the statutory duty to: • keep proper accounts; or • preserve accounts, business correspondence and business telegrams. Forgery of documents is covered by Article 251 of the SCC, which punishes the production and the use of a false or falsified document. If the offender is a public official or a person acting in an official capacity, Article 317 of the SCC (regarding forgery of a document by a public official) is applicable. public official for passive bribery. 2.3 Financial Record-Keeping
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