SWITZERLAND Trends and Developments Contributed by: Paul Gully-Hart, Schellenberg Wittmer Ltd
did not take all the reasonable and necessary organisational measures, between Febru - ary 2013 and February 2017, to prevent the commission by its employees of bribery of public officials in Ecuador in relation to its petroleum trading activities in that country. The conviction intervened in the context of a co-ordinated outcome with the United States. It is interesting to note that OFAG opened a criminal investigation in 2021 after having taken sight of court documents in the context of criminal proceedings brought in the United States. • In the above-mentioned case involving Glen - core, OFAG co-operated extensively with Dutch law enforcement (the Dutch Public Prosecution Service) with a view to resolv - ing charges for the same conduct which had been brought in the Netherlands. Switzerland has also been praised for its proac - tive approach in seizing and confiscating assets identified as proceeds of corrupt activity. Law enforcement authorities have ordered the freez - ing or the seizure of assets at a preliminary stage of criminal investigations. In addition, Swiss authorities have made efforts to address the interests of victims in obtain - ing restitution. The ability of victims, including foreign states, to participate in Swiss criminal investigations is one of the specific features of Swiss law that needs to be kept in mind. Switzerland has a successful record regarding restitution of ill-gotten assets to foreign states or to NGOs in the form of poverty reduction pro - grammes. To date, Switzerland has been able to return more than USD2 billion illicitly acquired assets involving politically exposed persons and senior government officials. Switzerland has also
conducted successful negotiations that led to restitution of assets in at least nine cases. Sources have indicated that in Switzerland anti-bribery and anti-money laundering meas - ures are closely linked and that Switzerland has managed to ensure strong support within the private sector to detect transnational bribery schemes. There is also a strong co-operation between OFAG and regulatory bodies such as the Swiss Financial Market Supervisory Author - ity (FINMA) and MROS. In its most recent report regarding Switzerland, the Working Group of the OECD has highlighted the fact that a number of corruption-related investigations have been prompted by the filing of suspicious transaction reports originating from the financial sector. Perceived weaknesses of the Swiss anti- corruption model The main weaknesses of the Swiss legal frame - work in combating corruption have been identi - fied in the monitoring process conducted under the OECD Convention and the United Nations Convention Against Corruption (UNCAC). • The level of sanctions and in particular the maximum fine for legal entities (CHF5 million) are considered to be too low to have a deter - rent effect. • The lack of incentives for self-reporting has resulted in insufficient co-operation of com - panies with law enforcement authorities. • Insufficient whistle-blower protection also affects effective detection of bribery. • The transparency of the judicial system needs to be improved, particularly in relation to non- trial resolutions of corruption-related cases. The Swiss government is aware that the high evidentiary threshold that is currently required is an obstacle to the successful prosecution of
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