SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
In the case of corporate liability (Article 102, paragraph 2 of the SCC), the bribery offence itself need not have been committed by a Swiss corporation in Switzerland. It is sufficient that a lack of organisation occurred (at least partially) in Switzerland, which may be the case if a sub - sidiary, affiliate or branch located in Switzerland is responsible for the compliance of the group of companies. The FINMA is authorised to issue administrative orders relating to corruption against persons and entities that are required to be licensed, recog - nised or registered by the FINMA. 7.4 Discretion for Mitigation and Aggravation The enforcing bodies act ex officio and are thus obliged to investigate and sanction bribery with - out exception. Swiss law does not provide for plea agreements, deferred prosecution agree - ments and non-prosecution agreements exactly equivalent to such instruments in other jurisdic - tions. However, Swiss law provides for the fol - lowing mechanisms to achieve similar results. According to Article 53 of the SCC, the compe - tent authority shall refrain from prosecuting or punishing an individual or corporation if: • the offender “admits the facts” and “has made reparation for the loss, damage or injury or made every reasonable effort to right the wrong”; • the interests of the general public and of the person harmed are negligible; and • the requirements for a suspended sentence of not more than one year are fulfilled. In such cases, the reparation requested can be discussed ex ante between the prosecution and
the defence, and could, for example, consist of a payment to a charitable organisation. • Articles 352 et seq of the SCP provide that, if the offender admits the facts brought against them or if the facts are “otherwise sufficiently established”, the prosecution authorities may issue a summary penalty order. This can be appealed to the court and is therefore, so to speak, a plea agreement offer by the prose - cution authorities. The offer may be the result of discussions between the prosecutor and the defence. • Articles 358 et seq of the SCP provide that an offender who admits the relevant facts brought against him or her and accepts civil claims raised by damaged parties may apply for so-called accelerated proceedings, which may involve “sentence bargaining” between the prosecutor and the defence. The sen - tence is reduced and a long trial avoided in return for the offender admitting the relevant facts. • Article 48(d) of the SCC provides for mitiga - tion of a sanction if the offender has shown sincere remorse for their actions and, in par - ticular, has made reparation for the damage (insofar as this may be expected of them). This provision can be applied, for example, in the case of self-reporting and/or improvement of the company’s compliance and govern - ance practice. As regards FINMA investigations, the FINMA has a wide discretion to mitigate sanctions in light of the financial intermediary’s co-operation during the investigation (including efforts for repara - tion).
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