Switzerland: Criminal Liability Of Corporations Requires Actual Proof Of An Underlying Offence

Last Updated: 9 November 2016
Article by Andrew M. Garbarski

Most Read Contributor in Switzerland, November 2017

In a recently released decision (6B_124/2016 dated 11 October 2016), the Swiss Federal Supreme Court (SFSC) held, for the very first time, that the criminal liability of corporations and undertakings (hereafter: corporations) under Swiss law requires the actual proof of an underlying offence committed by one or several individuals, regardless whether the latter are subject or not to prosecution.

The purpose of this briefing is to summarize the SFSC's reasoning and to anticipate the practical impact of this case law on present or future investigations, in which local or foreign corporations are subject or exposed to criminal prosecution in Switzerland.


Criminal liability of corporations entered into force in Switzerland in October 2003 (Art. 102 of the Swiss Criminal Code). Notwithstanding, subject to the widely-commented Swiss Post matter and certain further isolated cases echoed in the press (e.g. Alstom, Stanford Group, Nitrochem), only very few prosecutions were conducted so far against corporations, let alone have resulted in their condemnation. However, as evidenced by the public announcements made recently by the Office of the Attorney General of Switzerland in connection with the 1MDB scandal, it seems that the latest trend is to launch more systematically criminal investigations against corporations (such as financial institutions), in particular in matters relating to money-laundering or corruption.

In a nutshell, a Swiss or foreign corporation may be held criminally liable for any misdemeanor or crime that was committed within itself in the course of its commercial activities, if and provided that such offence cannot be imputed to a determined natural person (e.g. officer or employee) due to the corporation's deficient organization (Art. 102 I SCC, 'secondary liability'). Moreover, in connection with a limited number of offences (including money-laundering, corruption in the public or private sector, financing of terrorism), a corporation's criminal liability may also be engaged irrespective of the criminal liability of the natural persons, if its deficient organization has caused or failed to prevent the commission of such offence (Art. 102 II SCC, 'primary liability'). If found guilty based on Art. 102 SCC, a corporation faces a monetary penalty of up to CHF 5 million. Besides, the corporation may be exposed to confiscation of assets.

One of the questions that was controversial so far, is whether the prosecution authorities have to prove the actual commission of an underlying offence by a natural person within the corporation. Indeed, according to certain scholars, the criminal liability of corporations should also apply where the constitutive elements of such underlying offence are fulfilled, however in a more diffuse fashion, split across a number of individuals involved in its commission.

This is the key issue that the SFSC addressed in its reported decision of 11 October 2016.

Summary of the matter submitted to the SFSC

In early February 2005, an account opened by a company with Swiss Post was used for the reception of a total amount of EUR 5 million which stemmed from a fraudulent scheme. Shortly thereafter, the director of that company withdrew CHF 4.6 million in cash. According to his explanations (which were later found to be untrue), he needed this amount for the purchase of a gemstone. In the framework of the criminal investigation that followed, Swiss Post was accused pursuant to Art. 102 II SCC of having failed to take the necessary steps and implement an appropriate organization which would have prevented acts of money-laundering.

Having said that, the proceedings relating to suspicions of money laundering engaged against the Chief Cashier, who was involved in the preparation of the CHF 4.6 million that were handed over in cash to the fraudster were discontinued in the course of the investigation, for lack of intention. Moreover, the prosecution authorities never extended the investigation to the Swiss Post Compliance Officer who had been contacted by the Chief Cashier and who approved the transaction before the amount was actually paid out. Whilst Swiss Post was found guilty of money laundering by the Court of first instance of Solothurn in April 2011 and sentenced to a fine of CHF 250'000, such verdict was eventually overturned and Swiss Post fully acquitted by the Court of Appeal in November 2015.

Ultimately, such acquittal was challenged by the Public Prosecutor of Solothurn before the SFSC on the grounds, in substance, that the criminal liability of a corporation based on Art. 102 II SCC should also apply where the objective and subjective elements of an underlying offence (in casu money laundering) cannot be imputed to a determined individual but to the corporation as such.

The SFSC's reasoning

The SFSC dismissed the appeal. Against the argumentation of the Public Prosecutor, the SFSC affirmed the approach of the Court of Appeals and ruled that a corporation's criminal liability under Swiss law requires actual proof that all the objective and subjective constitutive elements of an offence committed by at least one individual within such corporation are fulfilled.

This applies not only in the context of Art. 102 I SCC (secondary liability), where the deficient organization of the corporation makes it impossible to impute the underlying offence to a determined person, but also in relation to Art. 102 II SCC (primary liability), where such deficient organization caused the commission of such offence. The fact that a corporation's criminal liability may be engaged under Art. 102 II SCC "irrespective of the criminal liability of the natural persons" only means that the prosecution or conviction of such persons is not required for this provision to apply.

Hence, according to the SFSC, there is no room for a causal liability and the corporation shall be acquitted (or, as the case may be, the investigation against it discontinued) if the prosecution authorities fail to prove the fulfillment of the underlying offence. Moreover, it goes without saying that the authorities also have to prove that the corporation's organization was defective.

Practical impact

The SFSC's decision 6B_124/2016 is well founded from a legal perspective and should be welcomed, as it sets a clear threshold that needs to be reached before a corporation's criminal liability can be engaged under Swiss law.

As a downside, however, the SFSC's decision could in particular

  • force prosecution authorities to investigate more thoroughly the actions and omissions of the individuals (e.g. officers, employees) potentially involved in the underlying offence, thereby increasing their personal exposure;
  • potentially prompt the prosecutors to adopt a more cautious approach before discontinuing criminal proceedings against individuals within the corporation, to the extent that such discontinuation could be deemed an admission that no underlying offence was committed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions