SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
financial matters under the CO (see 1.4 Recent Key Amendments to National Legislation ). While criminal law provides for corresponding sanctions in the event of a breach of reporting (Article 964a et seq. of the CO / Article 325bis and Article 325ter of the SCP), the Code of Obli - gations does not provide for an explicit basis for (civil) liability in the event of insufficient due diligence related to reporting duties. 6.2 Voluntary Disclosure Incentives A confession may lead to a reduced penalty if the perpetrator proves genuine remorse, com - pensates for the financial damage caused and thereby facilitates the criminal prosecution (Arti - cle 48 lit. d of the SCC). Furthermore, a perpetrator can apply for accel - erated proceedings if he or she is prepared to admit the relevant facts. In this case, it is not relevant whether the admission is made at a rela- tively late stage of the proceedings and without remorse only under the pressure of the criminal proceeding. Typically, the penalty negotiated and imposed in accelerated proceedings will be of a lesser severity. In case of criminal organisations, the court has the discretion to mitigate the penalty imposed if the perpetrator makes an effort to foil the crimi - nal activities of the organisation by co-operating with the criminal authorities (Article 260ter (4) of the SCC). Apart from this, Swiss law does not contain spe - cific provisions to reward voluntary reports of irregularities or co-operation by natural persons or corporations. However, in practice self-report - ing or co-operation during proceedings is gener - ally taken into account by the criminal authorities when determining a sentence. Since voluntary
the impact of the sanction on their life (Article 47 of the SCC). In order to determine the amount of the mon - etary penalty for an individual, the court spe - cifically takes into account the offender’s per - sonal and financial circumstances at the time of conviction (Article 34 of the SCC). In order to determine the amount of the fine in the case of a conviction of a corporation, the court takes into account the seriousness of the offence, the degree of the organisational inadequacies, the damage caused, and the economic capability of the company (Article 102, paragraph 3 of the SCC). Repeated offences will lead to an increase of the sentence by up to 50% based on the most serious offence (Article 49, paragraph 1 of the SCC). Although Swiss law generally does not contain provisions to reward spontaneous reports of irregularities, self-reporting followed by co-operation during criminal proceedings may be taken into account when the sentence is determined (see 7.4 Discretion for Mitigation and Aggravation ). As a general rule, a person or entity is not obliged to report crimes in Switzerland. Only the crimi - nal authorities, or other authorities pursuant to specific legal provisions, have an obligation to report crimes they have become aware of (Article 302 of the SCP). In these cases, the wilful failure to report may in itself constitute a crime (Article 305 of the SCP). Regarding corruption, concerned companies must prepare an annual report regarding non- 6. Disclosure Processes 6.1 Disclosure Obligations
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