SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
2.4 Public Officials Under Swiss law, there are several provisions pertaining to the criminally relevant behaviour of public officials. Pursuant to Article 313 of the SCC, any public official who – for unlawful gain – levies taxes, fees or other charges that are not due (or that exceed the statutory rates) is criminally liable. Likewise, any member of an authority or public official who damages the public interests that they have a duty to safeguard in the course of a legal transaction ‒ and with a view to obtaining an unlawful advantage for themselves or another ‒ is liable to prosecution for misconduct in public office (Article 314 of the SCC). Per Article 138 of the SCC, a public official is criminally liable for: • the appropriation of moveable property belonging to another but entrusted to said public official; and • the unlawful use of financial assets entrusted to said public official for their own or anoth - er’s benefit. Finally, any member of an authority or a pub - lic official who abuses their official powers to secure an unlawful advantage for themselves or another – or to cause prejudice to another – is liable to prosecution for abuse of public office (Article 312 of the SCC). 2.5 Intermediaries As previously mentioned in 2.1 Bribery , Articles 322ter to 322novies of the SCC explicitly provide that the undue advantage does not need to be offered, promised or given to the public official – it can also be offered, promised or given to a third party. Apart from that, the general pro -
visions concerning complicity, incitement and assistance are applicable, as the case may be. 2.6 Lobbyists Apart from the bribery offences (mentioned in 2.1 Bribery ), there is no specific legislation in Switzerland to regulate lobbing activities. However, there are a few regulations that serve the purpose of transparency. • During the legislative process, affected and interested groups have the opportunity to be heard and to express their point of view. • In addition, members of parliament are obliged to disclose their private interests in accordance with Article 11 paragraph 1 of the Parliament Act. • Furthermore, only those with an access pass are allowed into the parliament building. Each council member can provide two persons with an access pass. These persons and their function are entered in a publicly accessible register. Swiss criminal law distinguishes between the limitation of prosecution rights and the limita - tion period for the execution of a sentence. Whereas the former has the effect of hindering the authorities in prosecuting, the latter prevents a sentence from being executed. Limitation of prosecution rights depends on the maximum sentence provided for in the respec - tive offence. According to Article 97, paragraph 1(b) of the SCC, the right to prosecute is subject to a time limit of 15 years if the offence carries a custodial sentence of more than three years. 3. Scope of Application 3.1 Limitation Period
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