SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
7. Enforcement Trends 7.1 Enforcement
• the confiscation of illegal proceeds; • naming and shaming; • restriction or termination of activities; or • a ban on practising for several years for cer - tain individuals. The FINMA and the competent prosecution authorities have broad competences to co- operate and exchange the information that they require in the context of their collaboration. The MROS also plays an important role in the enforcement process. It receives suspicious activity reports from financial intermediaries and, after analysis, forwards them to the crimi - nal authorities for follow-up action. Such suspi - cious activity reports may relate to corruption as a predicate offence for money laundering, in par - ticular (see 6.2 Voluntary Disclosure Incentives ). In 2023, 8% of the predicate offences that led to reports to the MROS concerned the bribery of Swiss or Foreign Public officials. 7.3 Jurisdictional Reach of Enforcement Bodies According to Article 3 of the SCC, the Swiss criminal authorities have the authority to pros - ecute corruption committed in Switzerland. According to Article 8 of the SCC, a bribery offence is considered to be committed both at the place where the person concerned acts or unlawfully omits to act and at the place where the offence has taken effect (see 3.2 Geographi- cal Reach of Applicable Legislation ). The place of commission is broadly construed. Arguably, corruptive payments to or from a Swiss bank account are enough to create Swiss juris - diction, even if all persons involved act outside Switzerland.
Anti-bribery and anti-corruption laws are, in prin - ciple, enforced by criminal authorities and ‒ to a certain extent and less directly – by administra - tive bodies such as the Swiss Financial Market Supervisory Authority (FINMA) and the MROS (see 7.2 Enforcement Bodies ). Furthermore, an individual who has suffered harm from bribery or corruption may file a civil claim for compensation of damages or surrender of profits based on the Federal Law on Unfair Competition. They can file the civil claim in sepa - rate civil proceedings or as a private claimant in the criminal proceedings (see 5.1 Penalties on Conviction ). 7.2 Enforcement Bodies The enforcement of anti-bribery and anti-corrup - tion offences lies principally with the prosecu - tor’s office at the cantonal or federal level. The OAG will lead the investigation if the offence has been committed to a substantial extent abroad or in more than one canton (where no single can - ton is the clear focus of the criminal activity). An agreement is in place between the cantonal prosecution authorities and the OAG, which gov - erns the question of jurisdiction. Remaining con - flicts of competence are decided by the Swiss Federal Criminal Court. In relation to banks and other financial inter - mediaries, the FINMA is authorised to enforce its supervisory powers independently from any criminal investigation led by the prosecu - tion authorities. In a landmark case, the FINMA ordered a bank to terminate its activities in view of the bank’s involvement in corruption. In other cases, the procedures led to sanctions such as:
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