SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
According to Article 53 of the SCC, if an offend - er has made reparation for the loss, damage or injury (or made every reasonable effort to right the wrong that they have caused), the competent authority shall refrain from prosecuting them, bringing them to court, or punishing them if: • the requirements for a suspended sentence are fulfilled; and • the interests of the general public and of the persons harmed in the case are negligible. Alternatively, if the aforementioned requirements are not met, but the facts are acknowledged in a spontaneous report or during the subsequent investigation, the offender may apply for a so- called accelerated proceeding and thus avoid a long trial. Typically, the sanctions imposed in such accelerated proceedings are not as severe. Switzerland does not have the legal basis, simi - lar to a deferred prosecution agreement (DPA), to defer criminal prosecution against compa - nies and to subsequently discontinue criminal investigations if the company has successfully passed the probation period. The Office of the Attorney General of Switzerland’s (the OAG) pro - posal was not adopted in the Federal Council’s draft bill (2022) for a revision of the Swiss Crimi - nal Procedure Code (SCP).
onment or a monetary penalty. The maximum monetary penalty is CHF540,000. Depending on the circumstances of the case, penalties may also include a ban on exercising professional activities or a revocation of a residence permit for foreigners. A legal entity may be sanctioned with a fine of up to CHF5 million. As a further significant sanction, the court may order the forfeiture of illegal profits obtained through corrupt acts or assets intended to com - mission or reward the offender (Article 70 of the SCC). If the assets subject to forfeiture are no longer available, the court may uphold a claim for compensation by the state in respect of a sum of equivalent value (Article 71 of the SCC). There is no cap on the amount of money for such forfeiture or compensation claims. Often bribery will include concomitant violations of accounting or bookkeeping obligations, or fal - sification of accounting documents, and some - times tax offences. Such violations may lead to the same or similar criminal sanctions as bribery (ie, imprisonment or monetary sanctions), as well as administrative sanctions in certain regulated sectors. Lastly, Swiss criminal procedure law provides that any individual who has suffered harm from bribery or corruption may file a civil claim as a private claimant in the criminal pro - ceedings. 5.2 Guidelines Applicable to the Assessment of Penalties Swiss criminal law does not provide general guidelines on the assessment of appropriate penalties. Rather, based on the SCC, the author - ities have broad discretion when determining the appropriate sanction. Factors to be considered include the degree of fault, previous convictions, the personal circumstances of the offender, and
5. Penalties for Violations 5.1 Penalties on Conviction
The maximum penalty for an individual con - victed of the active or passive bribing of (either Swiss or foreign) public officials is five years’ imprisonment or a monetary penalty. The maxi - mum penalty for granting or accepting an undue advantage is three years’ imprisonment or a monetary penalty. Bribery in the private sector carries a sentence of up to three years of impris -
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