SWITZERLAND Trends and Developments Contributed by: Paul Gully-Hart, Schellenberg Wittmer Ltd
Non-trial resolution of corruption-related investigations Corruption related investigations and prosecu - tions are generally conducted by OFAG. There is a growing trend within OFAG to achieve a non- trial resolution of charges brought against com - panies under Article 102 of the SCC. The main procedural tool available to resolve criminal charges in Switzerland is the Summary Penalty Order (SPO). According to public data, more than 90% of criminal cases that have not been dropped are settled by means of an SPO. The SPO complies with the requirement of a speedy trial. The prosecution authority acts as the sole authority in charge of the investigations, prosecution and sentencing. There is no indict - ment and no trial in court. This possibility may be contemplated in situations where the relevant facts have been acknowledged by the defendant or where the prosecutor deems those facts to be sufficiently established by the investigation of the case. Although corruption is a serious offence in Switzerland, the SPO has been held to be an acceptable means of resolving criminal charges, mainly (if not exclusively) when the defendant is a company that has failed to take reasonable and necessary organisational measures to pre - vent corruption. A negotiated resolution of corruption-related charges may be achieved in situations where the defendant agrees to waive the right to object to the SPO which shall then become a final and enforceable decision with the same legal effect as a judgment handed down by a court. The OECD Working Group has expressed reser - vations as to whether the SPO meets the treaty
companies potentially involved in transnational corruption. For this reason, Switzerland will, in the coming years, consider the feasibility of reversing the burden of proof, when significant and unexplained enrichment of public officials is observed and/or to adopt leniency programmes to enhance self-reporting. The growing significance of corporate criminal liability One of the main trends of Swiss anti-corruption law is the increased use by prosecuting authori - ties of corporate criminal liability which is gov - erned by Article 102 of the Swiss Criminal Code (SCC). Article 102 of the SCC does not define any criminal conduct per se, but is considered as a general provision of Swiss criminal law attrib - uting, if certain requirements are met, criminal liability to a company (or any other undertaking) for the criminal conduct of an individual acting within the company. In order to establish corporate liability in respect of certain specified offences that include the corruption of Swiss and foreign public officials as well as money laundering, the prosecuting authority must show that the company has failed to take all the reasonable and necessary organi - sational measures that are required to prevent the perpetration of an offence. Since 2003, OFAG has secured 13 SPOs and three convictions from the FCC under Article 102 of the SCC, with approximately 20 more cases currently in progress. The majority of these cas - es involve corruption, accounting for 11 out of the 13 SPOs. Fines imposed have ranged from CHF1 million to a maximum of CHF4.3 million, the latter being the record set in the Gunvor case, with an average fine of CHF2.8 million. Confisca - tion orders have varied between CHF70,000 and CHF112.5 million.
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