Switzerland: Corporate Criminal Liability

Last Updated: 25 November 2016
Article by Andrew M. Garbarski

Most Read Contributor in Switzerland, July 2019

Criminal liability of corporations entered into force in Switzerland in October 2003.

Notwithstanding, subject to the Swiss Post matter and certain other isolated cases, so far only a small number of prosecutions have been conducted against corporations, let alone resulted in their condemnation. However, as evidenced by recent public announcements from the Office of the Attorney General of Switzerland in connection with the so-called 1MDB scandal, the latest trend seems to be launching more systematically criminal investigations against corporations (such as financial institutions). This is particularly so in matters relating to money laundering or corruption.

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 the offence cannot be imputed to a determined natural person due to the corporation's deficient organisation (article 102 I of the Swiss Criminal Code – SCC; so-called secondary liability).

Moreover, in connection with a limited number of offences (including money laundering, corruption in the public or private sector and terrorism financing), a corporation's criminal liability may also be engaged irrespective of the criminal liability of the natural persons, if its deficient organisation caused or failed to prevent the commission of the offence (article 102 II SCC; so-called primary liability). If found guilty, a corporation faces a monetary penalty of up to CHF 5 million (approximately $5.1 million). The corporation may also have its assets confiscated if they are tainted. One of the controversial questions is whether the prosecution authorities must prove the commission of an underlying offence by a natural person within the corporation. According to some scholars, the criminal liability of corporations should also apply where the constitutive elements of the underlying offence are fulfilled but are split across a number of individuals involved in its commission. This is the key issue that the Swiss Federal Supreme Court (SFSC) addressed in a milestone decision of October 11 2016.

Case summary

In early February 2005, an account opened by a company with Swiss Post was used to receive €5 million (approximately $5.5 million), which stemmed from a fraudulent scheme. Shortly after, the company director withdrew CHF 4.6 million in cash. According to his explanations (which were later found to be untrue), he needed this for the purchase of a gemstone. In the framework of the criminal investigation that followed, Swiss Post was accused pursuant to article 102 II SCC of having failed to take the necessary steps and implement an appropriate organisation which would have prevented acts of money laundering. However, the proceedings relating to suspicions of money laundering engaged against the employees, who were involved in the preparation of the CHF4.6 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 paid out.

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. However, this verdict was eventually overturned and Swiss Post was fully acquitted by the Court of Appeal in November 2015. Ultimately, this acquittal was challenged by the Public Prosecutor of Solothurn before the SFSC on the grounds that the alleged criminal liability of a corporation based on article 102 II SCC should also apply where the objective and subjective elements of an underlying offence (in the case of money laundering) cannot be imputed to a determined individual but to the corporation as such.

The SFSC's reasoning

The SFSC dismissed the appeal and affirmed the approach of the Court of Appeal. It 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 the corporation are fulfilled.

This applies not only in the context of article 102 I SCC, where the corporation's deficient organisation makes it impossible to impute the underlying offence to a determined person, but also in relation to article 102 II SCC, where this deficient organisation caused the commission of the offence. The fact that a corporation's criminal liability may be engaged under article 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. It goes without saying that the authorities also have to prove that the corporation's organisation was defective.

Practical impact

The SFSC's decision is well-founded from a legal perspective and should be welcomed. It sets a clear threshold that must be reached before a corporation's criminal liability can be engaged under Swiss law. As a downside, however, the SFSC's decision could:

  • force prosecution authorities to investigate more thoroughly the actions and omissions of the individuals (for example, officers and employees) potentially involved in the underlying offence, thereby increasing their personal exposure;
  • prompt 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.

Previously published in IFLR Magazine December / January 2017

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.

Similar Articles
Relevancy Powered by MondaqAI
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”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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